Barriers Fall for Out-of-State Attorneys

State bar associations throughout the United States are moving more rapidly toward relaxation of rules governing the practice of law by out-of-state attorneys.

The state bar associations in the nation's two most populous states, California and New York, this summer endorsed changes that will allow attorneys licensed to practice in other states to practice in their courts.

One possible consequence for law students is increased latitude in their decision on where to take the bar examination.

With increased freedom to practice in other states, graduates who intend to practice in California, for instance, could elect to dodge California's notoriously hard bar and take a reputedly easier exam in another state. That may prove more difficult than it sounds, however, because most states require several years of practice in good standing in the state where attorneys were originally admitted before waiving the requirement to take the bar in the state where they relocate.

The bar associations of virtually every U.S. state and territory are either reviewing or have already endorsed changes recommended by the American Bar Association's Commission on Multi-Jurisdictional Practice to the ABA's Model Rules of Professional Conduct in June 2002. Final adoption of those changes will be up to each state's highest court, except in New York, where that decision will be made by the state's four intermediate appellate courts.

Klaus Eppler of Proskauer Rose in Manhattan is chairman of the New York State Bar's Special Committee on Multi-Jurisdictional Practice that advocated virtually no limitations on the practice areas or types of attorneys who would be permitted to practice in other jurisdictions.

"It may be a little premature, but assuming that the administrative board adopts what the state bar recommended, we're going to beat the bushes in other states to do it in our less limited way," Eppler said.

Some states already sanction the practice in a limited way through reciprocity agreements with neighboring states.

Washington, Oregon and Idaho already have reciprocal practice agreements with one another, as do Vermont and New Hampshire. Arizona, Colorado, New Mexico and Utah are discussing a similar arrangement, while Maine has proposed joining Vermont and New Hampshire's compact.

The demand for some form of multi-jurisdictional practice approval has been growing for many years due to the Internet, enhanced communication technology and the increasing globalization of business transactions.

A 1988 California Supreme Court decision, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, upheld a 1927 law prohibiting attorneys not licensed in California from recovering fees for legal services in California. The decision called the issue into attention nationwide and bolstered the current drive toward interstate lawyering.

In most cases, there are some conditions attached to the out-of-state welcome mat. California, for instance, recommends limiting out-of-state attorney access to California courts to licensed public interest lawyers, in-house counsel and attorneys practicing temporarily in the state on either litigation or non-litigation matters.

In both New York and California, and many other states, the primary objection to multi-jurisdictional practice has been that it may prove difficult to discipline or otherwise regulate out-of-state attorneys.

During this summer's California State Bar meetings, a number of attorneys expressed concern that there was no provision requiring out-of-state attorneys to either register with the state bar or contribute to the Client Security Fund. The Client Security Fund exists to reimburse clients who have been poorly represented or cheated by California attorneys.

There are other troublesome issues as well. California, for instance, allows attorneys from non-ABA-accredited but state-approved schools to take the bar and practice in the state. There was some fear that such attorneys might be excluded by neighboring states if a more limited reciprocity agreement had been adopted.

Similarly, some states have worried that attorneys who may have passed less rigorous state bar exams than their own might be less qualified.

In response to that, the ABA's Multi-Jurisdictional Practice Committee pointed out that virtually all jurisdictions have adopted at least a portion of the standardized exam sections produced by the National Conference of Bar Examinations.

This story appeared in the November 2003 edition of The National Jurist,

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