August 2002

Ethics and the Law
Multijurisdictional Practice

by Barrie Althoff, WSBA Professionalism Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

After an introduction, this article looks at how Washington and the current and proposed ABA model rules handle jurisdiction over lawyer regulation. It then considers how the current regulatory approach may be affected by the treaty power under the U.S. Constitution, then briefly looks at several international agreements which may affect the regulation of the practice of law. It also looks at the very different and more coordinated and lawyer-friendly approach of the European Union to the regulation of multijurisdictional practice of law.

I. Introduction

When a lawyer provides legal services either physically or "virtually" in more than one jurisdiction, or represents a client in a transaction or litigation which involves more than one jurisdiction, which jurisdiction's ethical rules apply to the lawyer's conduct? Does the lawyer's conduct constitute the practice of law "in" other jurisdictions so that the lawyer needs to be admitted to practice in those jurisdictions? Does it matter if the presence is physical or virtual? Are the answers to the questions of "where" the lawyer is, or where the conduct takes place, controlling, relevant or irrelevant? Where transactions and litigation are increasingly multijurisdictional, does the continued local regulation of law practice continue to make sense? The following materials look at these questions, first in the context of Washington, then more broadly under national and international law.

Each jurisdiction has its own set of ethical rules applicable to lawyer conduct. Those rules generally apply to the conduct of lawyers who either are admitted to, or in fact practice "in," those jurisdictions. Within the United States, none of those sets of rules is identical, although many of them are heavily based, as are Washington's, on either the American Bar Association's (ABA) Model Rules of Professional Conduct or on the ABA's predecessor model rules, the Model Code of Professional Responsibility. Thus, while the ethical rules of the various jurisdictions have a common origin and resemble one another, they may or may not be consistent with one another.

Substantially all rules governing jurisdiction over a lawyer's practice of law are, at least in part, currently based on the physical location of the lawyer when performing legal services. In the past, when statutes or rules prohibited a lawyer from practicing law "in" a jurisdiction without being therein licensed (either fully or temporarily, for example, by pro hac vice admission), there was little question what "in" meant. It meant the physical location of the lawyer's body. With current technology, however, the physical location of a lawyer is increasingly irrelevant to the lawyer's ability to solicit clients and render legal services, since the lawyer can maintain a "virtual" presence almost anywhere. By not taking this virtual presence into account, the traditional "body-based" jurisdictional concepts of law practice leave the lawyer vulnerable to criminal and disciplinary charges of unauthorized practice, imperil the lawyer's right to legal fees, and unduly restrict the ability of potential clients to use that lawyer's services without proven justification that the public is in fact thereby being protected.

Under traditional conflict-of-laws analysis, the determination of which laws apply in a given situation is largely based on assessment of the contacts the case or matter has with each jurisdiction and the policies behind each jurisdiction's substantive laws. Under the Restatement (Second) of Conflict of Laws, the law applied is that of the jurisdiction having the most significant relationship to the persons involved and to the dispute or matter in light of the particular issue at stake. Thus, in some cases the ethical rules of the jurisdiction in which the conduct takes place will govern the lawyer's conduct. In other cases, it may be the rules of the jurisdiction in which the lawyer is admitted to practice that will govern. Or, both sets of rules may apply, even though the sets of rules may give contradictory mandates to the lawyer. When a lawyer is using modern technology and telecommunications to practice law, it may be difficult, if not impossible, to determine "where" conduct is taking place, and with multiple work sites, many jurisdictions' ethical rules likely may be involved.

To practice law in the United States, a lawyer must first be admitted to practice in at least one state. Under current interpretations, practicing law in a jurisdiction wherein the person is not admitted to the practice of law either generally or on a pro hac vice basis (other than perhaps for certain temporary minimal conduct) generally constitutes the unauthorized practice of law. In most jurisdictions, such conduct is both a criminal and an ethical violation subjecting the person to both criminal and disciplinary sanctions, although in fact there are relatively few prosecutions of such violations. More realistically and painfully, such nonadmitted practice may result in loss or denial of legal fees for the services rendered. Further, a lawyer properly admitted to practice law in a jurisdiction who assists another lawyer who is admitted in another jurisdiction, but not in the jurisdiction in question, may also violate the ethical prohibition of assisting the unauthorized practice of law, and thus be subject to disciplinary sanction. See, for example, Office of Disciplinary Counsel v. Pavlik, 89 Ohio St. 3rd 458, 732 N.E.2d 985 (2000) wherein an Ohio lawyer was reprimanded for assisting an Illinois lawyer who was not admitted to practice law in Ohio.

With the increased mobility of lawyers and their use of technology to maintain "virtual" offices or a "virtual" presence in many jurisdictions, and with the increased frequency of client transactions and litigation which involve several jurisdictions, lawyers increasingly need to determine which rules govern their conduct, whether they need to be admitted in jurisdictions, and then familiarize themselves with applicable ethics rules in addition to the substantive rules and laws governing the transaction or litigation in question. Given the current state of uncertainty as to what constitutes being "in" a jurisdiction and the disconnect between statutory prohibitions and present practices, this may be an impossible task.

Hundreds of years ago, when a lawyer's conduct was entirely local, local courts began to regulate the conduct of lawyers appearing before them. Since then, we have continued an essentially local-based regulation, although expanding it slightly to the extent that now in the United States it is each individual state (all 50 of them), rather than the individual judge or court, that jealously guards the right to regulate the practice of law.

With clients increasingly and routinely engaged in multijurisdictional transactions and litigation, often involving not merely several states but several different countries, with radical technological changes economically permitting far broader solicitation and delivery of legal services, the uncoordinated local regulation of the right to practice law no longer makes sense. The provision of legal services is not and should not be isolated from either the public or the marketplace; rather, legal services are for the benefit of the public and are an integral part of the marketplace. While maintaining the legal profession's core values, regulation of the profession must also be fully responsive to the public's needs for their own lawyers to practice wherever needed to solve client problems. Currently, that regulation in the area of multijurisdictional practice is overly restrictive without evidence that those restrictions, in fact, benefit the public.

Although the practice of law has expanded far beyond court-centered litigation so that now litigation, while important, is only a portion of the much broader spectrum of legal services being rendered, the regulation of the right to practice law is still largely focused on a litigation-centered concept of law practice and is regulated by litigation-centered and litigation-experienced Supreme Court justices, relatively few of whom have had extensive transactional law experience. For the legal profession to fully serve the public, and for the public still to be protected from errant lawyers, the system of regulating lawyers must take into account technological changes in both business and law practices, and the frequent multijurisdictional mobility of our clients in their personal and business lives, and work toward a coordinated system of both national and international regulation that permits lawyers to serve their clients across artificial borders without being subject to restrictions that are not absolutely necessary for protection of the public.

Lawyers are regulated to protect the public. When a lawyer practices in more than one jurisdiction, each jurisdiction has a legitimate interest in protecting its own residents and its own legal institutions from improper conduct of the lawyer, and in being able to implement that regulation through disciplinary enforcement procedures. But the current nationwide, even international, collection of fragmented, conflicting and uncoordinated local-interest regulations harm rather than protect the public.

A fundamental concern of every jurisdiction is that lawyers providing services within that jurisdiction are competent and of "good moral character." Each U.S. jurisdiction thus has various regulations intended to assure competence and to deal with the demonstrated lack of it. These often include requirements of graduation from law school (which usually must be accredited by the ABA) or other required pre-admission training, passage of the jurisdiction's bar examination, mandatory continuing legal education requirements, and possibly mandatory malpractice insurance and client-protection funds. All jurisdictions also have an ethics requirement of competence, such as Washington's RPC 1.1 (based on ABA Model RPC 1.1), requiring the lawyer to provide competent representation to the client. Substantially all jurisdictions have statutory or rule provisions prohibiting the unauthorized practice of law in their respective jurisdictions. All jurisdictions likewise seek to perform at least some minimal level of evaluation of a lawyer's character prior to admission to assure that the public is not endangered by, for example, a person who is likely to lie, cheat or steal.

Similarly, each jurisdiction has an interest in assuring that there are lawyers available locally to serve the needs of citizens. Each jurisdiction wants lawyers who will participate in not just the law, but the life of the local community and its organizations; who will know and be known by the community; who will be expected to live up to the local expectations of the community and be a leader to it; and who, as a good neighbor, will share his or her talents to improve the local community and its legal organizations through volunteer participation. In the context of multijurisdictional practice, there is fear that the out-of-jurisdiction lawyer will provide legal services without being an integral part of or understanding the local community, and without being wholly accountable to the community (including paying taxes on income earned in the community) to the same extent that a resident lawyer would.

More bluntly, local lawyers fear out-of-jurisdiction lawyers will swoop into their jurisdiction, steal or cherry-pick their clients, fleece and abandon the clients, and then abruptly depart leaving the local bar to pick up the pieces. They usually do not focus on how multijurisdictional practice would allow local lawyers to serve better in other jurisdictions their own local clients.

The need for multijurisdictional practice is not just by large out-of-state corporations. It is also needed by countless clients seeking to enforce child-support payments or protection orders, clients injured in automobile accidents in other jurisdictions, or clients harmed in cross-jurisdictional scams or consumer transactions, each of whom would usually far prefer to have their local lawyer handle their problem than have to retain an unknown out-of-jurisdiction lawyer to do so.

In the international arena, multijurisdictional practice is becoming increasingly important. As discussed below, the federal Constitution empowers the president to enter treaties with foreign jurisdictions, which would appear to include treaties to remove barriers to the trade in services, including professional legal services. Various foreign jurisdictions have already entered agreements to do so, and the United States is signatory to several agreements to work for the same result. These are leading the way to a broad acceptance of the concept that professionals, once duly licensed in a jurisdiction, should be able to practice in other jurisdictions without undue hindrance.

The spread of multijurisdictional practice in the face of legitimate local concerns and fears lead some to doubt the wisdom of permitting any multijurisdictional practice except under the most stringent of circumstances. When it comes to such practice, some jurisdictions discover insurmountable obstacles in what they perceive as the low level of lawyer competence or of disciplinary enforcement of other jurisdictions' lawyers. A not unusual refrain in discussions on multijurisdictional practice is that the other jurisdictions' bar exams are much easier than ours, their continuing legal education requirements are less onerous than ours, their lawyers are less ethical and far more uncivil than ours, and their disciplinary enforcement is less rigorous than ours. In each case, the local jurisdiction is expressing a concern to protect not the jurisdiction's lawyers, but its own citizens and civic institutions. Remarkably, each jurisdiction usually reciprocally points to its neighbors as examples of why multijurisdictional practice should be avoided. Such unfounded distrust of other jurisdictions begets reciprocal distrust harming the citizens of each jurisdiction. Lawyers, Supreme Court justices, and bar regulators need to trust that their counterparts in other jurisdictions each have equal dedication to professional goals, and serving and protecting the public. They will find by doing so that trust begets trust, and that the once-fearsome notion of multijurisdictional practice will instead become an obvious mechanism to better serve the public.

II. Washington Rules of Admission to Practice and Multi-State Compact

Washington's rules of admission to practice law are typical of, although perhaps more liberal than, those of many jurisdictions. As part of its regulation of the practice of law, the Supreme Court on June 8, 2001, effective September 1, 2001, defined in General Rule 24 what constitutes the practice of law, and set up through General Rule 25 a mechanism for overseeing that practice through the establishment of a Practice of Law Board. Various Washington judicial decisions, of course, have also addressed what conduct constitutes the authorized or unauthorized practice of law. The requirements for admission to the practice of law in Washington are set out in Admission to Practice Rule 1(b):

Except as may be otherwise provided in these rules, a person shall not appear as an attorney or counsel in any of the courts of the State of Washington, or practice law in this state, unless that person has passed the Washington State bar examination, has complied with the other requirements of these rules, and is an active member of the Washington State Bar Association.… A person shall be admitted to the practice of law and become an active member of the Bar Association only by order of the Supreme Court.

While prohibiting a lawyer from appearing as an attorney "in" any of the state courts or from practicing law "in" the state of Washington, the rule does not define the term "in." Does the rule's silence imply that all forms of presence, whether physical or virtual, are prohibited? May the state constitutionally assert jurisdiction for truly minimal contacts, such as when an out-of-state lawyer responds to a telephone query initiated by an in-state resident? The rule's silence reflects that when the rule was drafted the possibility of a virtual nonphysical presence was not considered.

Washington's Admission to Practice Rule 8 provides for various limited admissions to the practice of law. These include pro hac vice admission (APR 8(b)); admission where practice is to be limited solely to representation of indigents (APR 8(c)); admission where practice is solely clinical practice at a law school (APR 8(d)); admission where an otherwise retired lawyer provides only free legal services through a qualified legal services provider (APR 8(e)); and admission for in-house counsel whose practice is limited exclusively to representation of the corporation (APR 8(f)). Washington's Admission to Practice Rule 14 provides for a right of limited practice in the state of Washington to foreign (non-U.S.) lawyers to provide legal advice "in" Washington solely about the law of their respective foreign jurisdictions. Washington's Admission to Practice Rule 18 provides for reciprocal admission with abbreviated admission procedures for lawyers admitted to jurisdictions which provide for reciprocal admission for Washington lawyers.

Because of the frequency of overlapping practices of lawyers in Washington, Oregon and Idaho, those states, through an informal compact, have facilitated admissions to their states by not requiring passage of additional bar exams for lawyers from the other two states. The Washington State Supreme Court adopted its reciprocity rule, APR 18, in 1999. The Idaho Supreme Court approved Idaho Bar Commission Rule 204A, effective October 1, 2001, which permits reciprocal admission for Oregon and Washington lawyers. The Oregon Supreme Court adopted its Admission to Practice Rule 16, effective January 1, 2002, allowing for admission by Washington and Idaho admitted lawyers. The essential elements of the tri-state reciprocity arrangement are:

1. Graduation from an ABA-approved law school (thus, persons admitted to practice via a law-clerk program, such as under Washington's APR 6, are not eligible for tri-state reciprocal admission);

2. Prior passage of the Idaho, Washington or Oregon bar examination (thus persons admitted to one of those three states without examination on the basis of reciprocal admission from a state other than those three states are not eligible for tri-state reciprocal admission);

3. Three years of active, substantial and continuous practice, as the lawyer's principal occupation, in one or two of the three states immediately before applying for admission to another of the three states;

4. A showing of good moral character;

5. Submission of a completed application for admission to practice and payment of applicable fees;

6. Fifteen hours of continuing legal education in the practice, procedure and ethics of the new state within six months of admission to practice in each state, or, for admission to Oregon, prior to admission in Oregon (but after applying for admission to practice in Oregon); and

7. For admission to Oregon, lawyers must comply with Oregon's mandatory malpractice insurance requirements.

Idaho, Oregon and Washington have also adopted, along with Utah, a compact governing mandatory continuing legal education requirements. Under it, a lawyer may satisfy the continuing legal education requirements of the four states by meeting the MCLE requirements of the state in which the lawyer's principal office is located, and then by providing to the other three states a current compliance certificate issued by the home state.

The tri-state compact eases advance cross-admission for lawyers, and thereby removes the concerns of multijurisdictional practice as to those three states. Its application is, of course, very limited. It applies only to the three states. It mandates payment of another set or sets of annual bar license fees and maintenance of additional records, and thus will likely be too expensive and cumbersome for many lawyers whose practice only occasionally involves practice in the other two states. The admission process is too time-consuming to be useful for the lawyer responding to an immediate client need. Thus, its value is primarily for lawyers who now have, or seek to develop, extensive tri-state practices sufficiently large to justify the added expense and complexity.

A tri-state admitted lawyer practicing in jurisdictions other than the three states must do the same analysis that any other lawyer must do with a multijurisdictional litigation or transactional practice. The lawyer should determine whether the laws of those other jurisdictions require the lawyer to be admitted to practice therein to provide the called-for legal services. If the conduct involves litigation, the necessity of some form of admission is usually clear (other than perhaps as to some pre-litigation activities), since without it the lawyer usually cannot appear in court. Further, in litigation, parties with interests adverse to those of the lawyer and the lawyer's client in effect police the requirement for admission. If the lawyer's practices involves alternative dispute resolution, the need for admission is less certain (but see discussion below). Where litigation is not involved, however, and the lawyer is instead engaged in a transactional practice, even where the clients have adverse interests, they have a common interest in seeing that the transaction succeeds and are likely to view restrictions such as admission-to-practice requirements as a hindrance to all sides in the transaction. Thus, transactional participants and their lawyers are less likely to either practically care about or to police admission-to-practice requirements.

Depending on the nature of the lawyer's practice, it may be possible to anticipate the needs for further admissions far in advance and obtain appropriate admissions prior to a given transaction or litigation so that the lawyer is not thereafter, having failed to anticipate such needed admissions, placed in the position of trying to make virtue out of necessity by having to argue that such admissions were never in fact needed. Bad facts do not make good law.

As a practical matter, where the lawyer's practice is transactional or involves alternative dispute resolution, failure to secure appropriate admissions to practice in another jurisdiction is not often likely to lead to criminal or disciplinary action. The chances of such action increase, however, when the underlying transaction is called into question, most often because that transaction has failed or led to litigation and the client is now seeking a defense to payment of legal fees. In that case, the denial of legal fees is a very real possible consequence. For example, in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119, 949 P.2d 1 (1998), cert. denied 525 U.S. 920 (1998), a California court denied legal fees to lawyers admitted in New York, but not in California, for legal services they provided in California. On the other hand, in Estate of Condon, 65 Cal. App. 4th 1138, 76 Cal. Rptr. 2d 922 (1998), a Colorado lawyer who performed legal services in Colorado for a California resident as to a California estate was permitted legal fees for work performed by him.

A recent Colorado case illustrates how a federal/multistate, multijurisdictional practice can deprive a lawyer of a fee. Koscove v. Bolte, 30 P.3d 784 (CO, 2001). A Colorado client agreed to pay one-third of recovered mineral royalty rights to Colorado-resident, but not Colorado-admitted, lawyer Bolte. Knowing that Bolte was not licensed in Colorado, but only in Wisconsin, the client retained a Colorado-licensed lawyer to handle federal court litigation in Colorado, with Bolte becoming admitted pro hac vice as co-counsel for that litigation. The litigation recovered a substantial amount for the client, who then paid Bolte but thereafter successfully sued him under Colorado state law to recover the fees on the basis Bolte was not licensed in Colorado. The appellate court, without deciding whether the federal court might have jurisdiction to award Bolte fees for the federal litigation, affirmed the trial court's finding that the services were the unauthorized practice of law and that the client could recover such fees under a Colorado statute. While Bolte, despite his denials, clearly practiced law in Colorado, equally clearly the client used the Colorado unauthorized practice of law (UPL) statute to deprive Bolte of earned legal fees. The client here hardly has clean hands.

In multijurisdictional cases like this, where the public has not been harmed but in fact benefited, it is questionable whether the UPL provisions play fair between lawyer and client, or protect the public from anything. For another recent federal-state multijurisdictional case, see In re Lite Ray Realty Corp., Bankr. S.D.N.Y., No. 00-15007-SMB, 1/16/01 (federal bankruptcy court not permitting a New York-suspended lawyer to practice before it).

III. Washington and ABA Model Rules of Professional Conduct

The unauthorized practice of law is in most jurisdictions both a criminal violation (see, for example, RCW 2.48.180(3)) and, for a lawyer, an ethical violation. The ethical violation is usually stated quite directly: a lawyer may not practice law, or assist another to do so, in any jurisdiction if doing so violates that jurisdiction's regulation of the practice of law. Such conduct, along with much other conduct, is then defined as misconduct, which is subject to discipline in the lawyer's home jurisdiction.

The underlying principle under the current approach is that any practice of law by a lawyer in a jurisdiction in which the lawyer is not admitted is forbidden. Substantially everyone agrees, however, that the current approach needs revision, although there is a wide divergence of opinion on the scope and direction of that revision. Both the ABA Commission on the Evaluation of the Professional Rules of Conduct (ABA Ethics 2000 Commission) and the ABA Commission on Multijurisdictional Practice (ABA MJP Commission) have recommended changes in these rules, as have others.

This section first sets out and discusses the unauthorized-practice provisions of the lawyer ethics rules (as embodied in current ABA Model RPC 5.5 and similar state provisions), and then sets out and briefly comments on the jurisdictional provisions of those rules (as embodied in current ABA Model RPC 8.5 and similar state provisions). Section IV briefly reviews the related jurisdictional provisions of the disciplinary enforcement rules.

Washington's RPC 5.5

Washington's RPC 5.5 is based on American Bar Association Model RPC 5.5 and is nearly identical. Washington's RPC 5.5 is as follows:

RPC 5.5 Unauthorized Practice of Law

A lawyer shall not:

(a) Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) Assist a person who is not a member of the Bar in the performance of activity that constitutes the unauthorized practice of law.

Violation or attempted violation of this and other rules is made ethical misconduct by reason of Washington's RPC 8.4. The jurisdictional provisions of Washington's RPCs are discussed in Section IV, below.

In 2000, the WSBA Board of Governors appointed a Future of the Legal Profession Study Group to consider multijurisdictional and multidisciplinary practice. In its July 2001 report, the group recommended to the board that Washington adopt the proposed May 2001 revision of ABA Model RPC 5.5 by the ABA Ethics 2000 Commission, discussed below. That board, awaiting completion of the Ethics 2000 Commission's work, has not yet acted on the recommendation.

ABA Model RPC 5.5

Existing ABA Model RPC 5.5. The current version of ABA Model RPC 5.5 is as follows:

Rule 5.5 – Unauthorized Practice of Law

A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

Both the ABA Ethics 2000 Commission and the ABA MJP Commission have recommended this provision be changed. Their proposed revisions, discussed below, as well as extensive analyses and documentation, can be found on the ABA's Web site at http://www.abanet.org/cpr.

Changes Proposed by ABA Ethics 2000 Commission. The ABA Ethics 2000 Commission recognized the need to revise existing ABA Model RPC 5.5 and, in the course of its deliberations and after extensive public comment, drafted a series of possible amendments. Its first public draft, included in its November 2000 interim report, proposed a significant change from existing Model RPC 5.5 by explicitly recognizing circumstances under which a lawyer not admitted to practice in a given jurisdiction should still legitimately be able to practice therein on a limited basis. The exceptions related principally to pretrial preparatory work, in-house corporate counsel work, work growing out of or reasonably related to the lawyer's practice on behalf of a client where the lawyer is admitted, and work when associating with a lawyer admitted in a given jurisdiction. After receiving further public comment on its proposals in March 2001, it issued a revised discussion draft, which maintained the basic structure of the November 2000 version but responded to specific criticisms. In May 2001, it further revised its proposal but retained the same basic exceptions. The May 2001 revision, with strike-throughs and underlinings showing changes from existing ABA Model Rule 5.5, and italics showing changes from the March 2001 draft, is as follows:

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW [May 2001 proposal]

(a) A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or.

(b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when:

(1) the lawyer is authorized by law or order to appear before a tribunal or administrative agency in this jurisdiction or is preparing for a potential proceeding or hearing in which the lawyer reasonably expects to be so authorized; or

(2) other than engaging in conduct governed by paragraph (1):

(i) a lawyer who is an employee of a client acts on the client's behalf or, in connection with the client's [other employees or its] matters, on behalf of the client's commonly owned organizational affiliates;

(ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer's representation of a client in a jurisdiction in which the lawyer is admitted to practice; or

(iii) the lawyer is associated in the matter with a lawyer admitted to practice in this jurisdiction who actively participates in the representation.

(b) (c) A lawyer shall not assist a another person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

However, when the ABA Ethics 2000 Commission presented its other recommendations to the ABA House of Delegates, first in Chicago in August 2001 and then in Philadelphia in February 2002, it refrained from recommending any changes to ABA Model RPC 5.5 in light of the continuing concurrent work of the ABA MJP Commission. The house voted to adopt substantially all of the ABA Ethics 2000 recommendations, but did not consider Model RPC 5.5, since no recommendations thereon were presented to it. The ABA MJP Commission recommendations, discussed below, will likely be considered by the house in August 2002.

Changes Proposed to ABA Model RPC 5.5 by ABA MJP Commission. The ABA MJP Commission likewise held extensive public hearings, and invited and received vigorous debate on multijurisdictional practice. In November 2001, its interim report recommended substantially amending ABA Model RPC 5.5 to maintain the current general prohibition of multijurisdictional practice, but also to provide exceptions, referred to in the commentary as "safe harbors." The recommended safe harbors included the following practice areas:

•  Work as co-counsel with a lawyer admitted to practice law in the jurisdiction;

•  Professional services that a nonlawyer is legally permitted to render;

•  Work ancillary to pending or prospective litigation or administrative agency proceedings;

•  Representation of clients in, or ancillary to, an alternative dispute resolution setting, such as arbitration and mediation;

•  Non-litigation work ancillary to the lawyer's representation of a client in the lawyer's home state (i.e., the jurisdiction in which the lawyer is licensed to practice law) or ancillary to the lawyer's work on a matter that is in the lawyer's home state; and

•  Services involving primarily federal law, international law, the law of a foreign jurisdiction, or the law of the lawyer's home state.

In May 2002, the ABA MJP Commission released its final report with relatively minor changes to its November 2001 draft proposal. It discontinued use of the phrase "safe harbor" in the commentary, but continued the concept. The final recommendation of the ABA MJP Commission to revise current ABA Model RPC 5.5 follows, with underlinings indicating additions and strike-throughs indicating deletions from the current ABA Model RPC 5.5:

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW

(a) A lawyer shall not: (a) practice law in a jurisdiction where doing so violates in violation of the regulation of the legal profession in that jurisdiction;, or (b) assist a person who is not a member of the bar another in the performance of activity that constitutes the unauthorized practice of law doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2) are services that the lawyer is authorized by federal or other law to provide in this jurisdiction.

Alternative Changes Proposed to ABA Model Rule 5.5: "The Common-Sense Proposal." Various alternative proposals have been suggested to the proposed ABA Model RPC 5.5 revisions by the ABA Ethics 2000 Commission and the ABA MJP Commission. The most widely discussed alternative was the joint proposal of the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers, and the American Corporate Counsel Association. Their self-named "common-sense proposal," also supported by numerous other organizations, more or less reversed the ABA safe-harbor proposal by instead starting on the premise that lawyers, once admitted in one jurisdiction, may legitimately practice in other jurisdictions unless certain specific conditions arise. The initial "common-sense proposal" was released in 2001 in the form of a proposed model rule or statute (see 17 Law. Man. Prof. Conduct 692). The proponents of the "common-sense proposal" thereafter revised their proposal (see 18 Law. Man. Prof. Conduct 106) to read as follows:

Rule 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW

(a) Unauthorized Practice of Law. A lawyer shall not:

1. practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

2. assist another person in the unauthorized practice of law.

(b) Multijurisdictional Practice of Law. A lawyer admitted to practice and in good standing in another jurisdiction, but not admitted in this jurisdiction, may engage in the practice of law in this jurisdiction when:

1. the lawyer is authorized by law or order to appear before a tribunal or administrative agency or is preparing for a potential proceeding or hearing in which the lawyer reasonably expects to be so authorized; or

2. other than engaging in conduct governed by paragraph (b)(1):

i. the lawyer is an employee of a client and acts on the client's behalf or on behalf of the client's organizational affiliates; or

ii. the lawyer performs services for a client in this jurisdiction on a temporary basis, does not establish a systematic and continuous presence in this jurisdiction for the practice of law and does not hold out to the public that the lawyer is licensed to practice law in this jurisdiction.

Where Do We Go from Here? The ABA MJP Commission completed its analysis of multijurisdictional practice and issued its final report (dated August 2002) in May 2002. The ABA Ethics 2000 Commission is deferring to the ABA MJP Commission as to multijurisdictional practice issues. Revision of ABA Model RPC 5.5 is expected to be considered by the ABA House of Delegates at the ABA Annual Meeting in Washington, D.C., in August 2002. It is not known whether, in addition to the ABA MJP Commission proposal, the "common-sense proposal," or other alternatives, will also be considered. After house action, it will, of course, be up to the individual states to determine whether they wish to adopt or revise their respective versions of ABA Model RPC 5.5.

Ethics Jurisdiction Rules – ABA Model RPC 8.5 and Variants

ABA Model RPC 5.5, Washington's RPC 5.5, the Ethics 2000 and MJP commissions' proposals regarding ABA Model RPC 5.5, and the "common-sense proposal" alternative rule all relate to what conduct is, or should be deemed to be, the unauthorized practice of law. However, they do not address the closely related question of to whom any given jurisdiction's ethics rules apply. That question is instead addressed by ABA Model RPC 8.5 and state variations thereon.

Generally, a lawyer's ethical misconduct is subject to the disciplinary jurisdiction of the jurisdiction wherein the conduct takes place, as well as the jurisdiction in which the lawyer is licensed to practice law. If more than one jurisdiction is involved, the jurisdiction may have specific choice-of-law provisions to determine the applicable ethics rules to which the lawyer should look.

Washington's jurisdictional provision, set out in its RPC 8.5, is concise, but makes no provisions for choice of law and is silent as to any claim of jurisdiction over out-of-state lawyers not admitted or licensed in Washington but in fact practicing in Washington.

RPC 8.5 Jurisdiction

A lawyer licensed or admitted for any purpose to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.

Currently pending before the Washington State Supreme Court is a suggested amendment of that rule providing for reciprocal discipline, with underlining showing proposed additions, as follows:

RPC 8.5 Jurisdiction

(a) A lawyer licensed or admitted for any purpose to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.

(b) A lawyer may be subjected to disciplinary sanctions or actions in this jurisdiction on the basis of suspension, disbarment or other disciplinary sanction by competent authority in any other state, federal or foreign jurisdiction.

Thus, even as proposed to be amended, Washington would not claim direct jurisdiction over a lawyer in fact practicing in Washington who was not, however, either admitted or licensed in Washington. Instead, Washington would rely on that lawyer's home jurisdiction to discipline the lawyer and then, on the basis of reciprocity, discipline the lawyer itself.

Washington RPC 8.5 varies considerably from existing ABA Model RPC 8.5, principally by leaving out the ABA model choice-of-law provisions. Existing ABA Model RPC 8.5 is as follows:

Rule 8.5: Disciplinary Authority; Choice of Law

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

(2) for any other conduct,

(i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

The ABA Ethics 2000 Commission proposed various drafts to amend ABA Model RPC 8.5, the principal draft being set forth in its May 2001 report. Subsequently, that commission determined to defer to the recommendations of the ABA MJP Commission as to multijurisdictional practice issues. The ABA MJP Commission's final report, released in May 2002 (but dated August 2002), essentially adopted the ABA Ethics 2000 May 2001 recommendation, with minor revisions, as to ABA Model RPC 8.5. The ABA MJP Commission recommendation, likely to be considered by the ABA House of Delegates in August 2002, is as follows:

RULE 8.5: DISCIPLINARY AUTHORITY; CHOICE OF LAW [MJP Commission Proposal]

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

(2) for any other conduct,

(i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

The official comments to ABA Model RPC 8.5 (none of which were adopted by Washington) explain the ABA model rule. The last comment as it currently exists observes that the rule is not intended as a rule governing jurisdiction in cross-border (transnational) situations, which, it observes, should instead be governed by agreements between jurisdictions or other international law. The Ethics 2000 Commission in its May 2001 report, and the MJP Commission in its final report, has proposed reversing that comment such that ABA Model RPC 8.5 would apply to lawyers engaged in transnational practice unless international law, treaties or other agreements provide otherwise. The ABA MJP Commission's recommended revision of the comment to ABA Model Rule 8.5 essentially adopts the ABA Ethics 2000 Commission's May 2001 proposed revision of the commentary, with minor changes. The MJP Commission's proposed revision to the commentary to ABA Model RPC 8.5 (with proposed additions underlined and proposed deletions struck through) is as follows:

Comment

Disciplinary Authority

[1] Paragraph (a) restates It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions will further advance the purposes of this Rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement.

Choice of Law

[2] A lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. In the past, decisions have not developed clear or consistent guidance as to which rules apply in such circumstances. Additionally, the lawyer's conduct may involve significant contacts with more than one jurisdiction.

[3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct, and (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions, and (iii) providing protection from discipline for lawyers who act reasonably in the face of uncertainty.

[4] Paragraph (b)(1) provides that as to a lawyer's conduct relating to a proceeding in pending before a court before which the lawyer is admitted to practice (either generally or pro hac vice) tribunal, the lawyer shall be subject only to the rules of professional conduct of that court tribunal. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer licensed to practice only in this jurisdiction shall be subject to the rules of professional conduct of this jurisdiction, and that a lawyer licensed in multiple jurisdictions shall be subject only to the rules of the jurisdiction where he or she (as an individual, not his or her firm) principally practices, but with one exception: if particular conduct clearly has its predominant effect in another admitting jurisdiction, then only the rules of that jurisdiction shall apply. The intention is for the latter exception to be a narrow one. It would be appropriately applied, for example, to a situation in which a lawyer admitted in, and principally practicing in, State A, but also admitted in State B, handled an acquisition by a company whose headquarters and operations were in State B of another, similar such company. The exception would not appropriately be applied, on the other hand, if the lawyer handled an acquisition by a company whose headquarters and operations were in State A of a company whose headquarters and main operations were in State A, but which also had some operations in State B shall be subject to the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.

[5] [6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.

[6] [7] The choice of law provision is not intended to apply to applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise. Choice of law in this context should be the subject of agreements between jurisdictions or of appropriate international law.

The ABA House of Delegates will likewise likely consider the suggested revisions to the official commentary to ABA Model RPC 8.5 at the August 2002 ABA Annual Meeting in Washington, D.C.

IV. Rules of Disciplinary Enforcement

Section III of this article reviewed the ethics rules and ethics jurisdictional rules relating to multijurisdictional practice. Those rules may be enforced against a lawyer from outside a jurisdiction, however, only to the extent that the jurisdiction's disciplinary enforcement rules permit.

Washington Rules

Washington's statement of disciplinary enforcement jurisdiction is set out in Rule 1.2 of its Rules for Lawyer Discipline as follows:

RLD 1.2 Jurisdiction

A lawyer admitted to the practice of law in this state, and any lawyer specially admitted by a court of this state for a particular case, shall be subject to these Rules for Lawyer Discipline. Jurisdiction shall continue whether or not the lawyer retains the authority to practice law in this state, and regardless of the residence of the lawyer.

Currently pending before the Washington State Supreme Court are suggested rules to replace Washington's existing disciplinary rules with a new set of rules, tentatively titled "Rules for Enforcement of Lawyer Conduct" (ELCs). ELC 1.2 is as follows:

ELC 1.2 Jurisdiction [proposed]

Any lawyer admitted, or permitted by rule, to practice law in this state, and any lawyer specially admitted by a court of this state for a particular case, is subject to these Rules for Enforcement of Lawyer Conduct. Jurisdiction exists regardless of the lawyer's residency or authority to practice law in this state.

The relationship between the first and second sentence of the proposed revision is ambiguous. The first claims jurisdiction over lawyers admitted or permitted by rule to practice in Washington. The second sentence is likely primarily directed at the common situation of a lawyer formerly resident in or admitted to practice in Washington who is no longer, but it also may be read to claim jurisdiction to discipline a lawyer practicing in Washington regardless of whether the lawyer was ever licensed or admitted to practice therein.

ABA Model Enforcement Rules

The relevant portion of the comparable provision of Rule 6 of the ABA's Model Rules for Lawyer Disciplinary Enforcement is considerably more detailed:

Rule 6

A. Lawyers Admitted to Practice. Any lawyer admitted to practice law in this state, including any formerly admitted lawyer with respect to acts committed prior to resignation, suspension, disbarment, or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of these Rules or of the Rules of Professional Conduct [Code of Professional Responsibility] or any Rules or Code subsequently adopted by the court in lieu thereof, any lawyer specially admitted by a court of this state for a particular proceeding, [and any lawyer not admitted in this state who practices law or renders or offers to render any legal services in this state] is subject to the disciplinary jurisdiction of this court and the board.…

The ABA commentary to the portion of the ABA model rule cited above, not adopted by Washington, observes:

Admission to practice triggers the jurisdiction of the disciplinary authority, regardless of the location of the lawyer, the place where the act occurred, or whether the lawyer is qualified to practice; the court has the right and the obligation to inquire into any facts bearing upon the lawyer's fitness to practice.

A lawyer specially admitted in a state has a license for that limited appearance and is subject to the disciplinary authority of that jurisdiction. In the same way that the motorist has given him implied consent to be bound by the traffic laws of the states he travels, the lawyer admitted for a limited purpose subjects himself or herself to the rules of conduct in the jurisdiction.

It is inappropriate for the state in which the lawyer is specially admitted to rely exclusively upon the lawyer's home jurisdiction to enforce ethical standards. The witnesses and other evidence of misconduct are likely to be located in the adopted jurisdiction. Moreover, the jurisdiction in which the misconduct occurred will be far more interested in pursuing the matter. Finally, misconduct should in the first instance be judged by the ethical standards of the jurisdiction where it occurred.

V. Constitutional Considerations and International Trade Agreements

In the international arena, multijurisdictional legal practice is becoming increasingly important and common with a number of foreign jurisdictions having already entered agreements removing traditional barriers to multijurisdictional practice. In general, those jurisdictions are more receptive to multijurisdictional practice than nearly any U.S. jurisdiction. As those jurisdictions promote such practice, the U.S. jurisdictions will either have to reciprocate and accommodate such practices, thereby allowing U.S. clients and lawyers to avail themselves of the benefits of such practices, or continue their existing protective measures restricting such practice. If U.S. jurisdictions do not accommodate international multijurisdictional practice willingly, they may ultimately be forced to do so under either federal constitutional grounds, by reason of international agreement, or ultimately by the power of the marketplace.

(a) United States Constitution. Under Article II, Section 2 of the U.S. Constitution, the president of the United States has the power to make treaties ("He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur"). Pursuant to that power, various international agreements affecting the ability of professionals to engage in their respective practices in other jurisdictions have been adopted, including the North American Free Trade Agreement, the General Agreement on Trade in Services, and, most recently, the Declaration of Quebec City. In addition, the European Union has adopted Directive 98/5, permitting multijurisdictional practice among member states.

Arguably the power of the U.S. president to make treaties under the Constitution is subject to the respective court's inherent right to regulate those who practice before it. If such a limitation were to apply, however, it is likely the limitation should be read very narrowly to apply only to a court's right to regulate the practice of lawyers actually before the court in a litigation practice, and should not apply to the far greater areas of legal practice, for example, involving transactions, wherein the courts are, as a practical matter, largely irrelevant. Thus, the European Union's Directive 98/5, discussed below, provides that a jurisdiction may require a lawyer practicing in another jurisdiction to associate with a home jurisdiction lawyer in litigation matters. Alternatively, there are clearly business or commercial aspects to the practice of law that may be regulated by those other than the courts, and a court's inherent power to regulate the practice of law should be limited to the court's right to regulate the professional aspects of the practice, not the business aspects. The distinction between the two, however, may be perilously thin, since many "ethical" mandates set out in the Rules of Professional Conduct, or the predecessor Code of Professional Responsibility, clearly regulate business aspects of the practice.

(b) The General Agreement on Trade in Services. The United States is a signatory to the General Agreement on Trade in Services (GATS), which became effective January 1, 1995, and which is being further refined in an ongoing series of international meetings. Since trade in services accounts for more than 70 percent of the U.S. gross domestic product and more than 22 percent of its foreign trade, promotion of trade is clearly of vital interest to the U.S. economy. GATS, regulating the trade in services, is the counterpart of the tariff schedules under the World Trade Organization (WTO) for companies involved in the trade in goods and was negotiated in what is referred to as the "Uruguay Round" of negotiations under the General Agreement on Tariffs and Trade.

GATS establishes worldwide rules on trade and investment in services, including all economic activities whose outputs are other than tangible goods including, but not limited to, banking, insurance, transportation, communications and data processing, retail and wholesale trade, advertising, professional services, audiovisual, education, health care and tourism. Professional services include, for example, legal services as well as accounting services; architectural, engineering and construction services; and advertising services.

While each member of the WTO signed GATS, a country may limit market access and national treatment in its "schedule of commitments." When a country lists a sector in its schedule and makes a specific commitment in its schedule, it agrees to allow foreign service suppliers to enter its market to provide a service (market access) and agrees to treat foreign suppliers under the same terms and conditions as it treats its domestic suppliers (national treatment). By making a commitment, a country agrees to adhere to the agreement (subject to the limitations listed in its schedule) and not to become more restrictive in that specific service sector, just as tariff schedules are commitments not to raise tariffs in the future above the level scheduled. Commitments under GATS are enforceable under WTO dispute settlement mechanisms, including required compensation payments. See "Making Sense of the General Agreement on Trade in Services" (fact sheet released by the U.S. Bureau of Economic and Business Affairs, June 20, 1996).

(c) North American Free Trade Agreement. The United States, Canada and Mexico entered this agreement (NAFTA), effective January 1, 1994, to, according to Article 102, eliminate barriers to trade in, facilitate the cross-border movement of goods and services, and promote conditions of fair competition within the respective countries. Like GATS, each country's commitments under NAFTA are subject to various schedules of their commitments.

Chapter 12 of NAFTA generally deals with cross-border trade in services. Article 1213(2) defines professional services as services "the provision of which requires specialized post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted" by a country (including its governmental subdivisions).

NAFTA applies, through Section A of Annex 1210.5, to the processing of applications for, and the development of professional standards and criteria for, licenses and certifications, including education, examination, experience, conduct and ethics (including standards of professional conduct and the nature of disciplinary action for nonconformity with those standards), scope of practice (including limitations on permissible activities), local knowledge (regarding local laws, regulations, language), recertification and consumer protection (including bonding, professional liability insurance, client restitution funds, and consumer protection for clients).

Section B of the same annex deals with foreign legal consultants, and provides that each country "shall, in implementing its obligations and commitments regarding foreign legal consultants as set out in its relevant Schedules and subject to any reservations therein, ensure that a national or another Party is permitted to practice or advise on the law of any country in which that national is authorized to practice as a lawyer."

The annex goes on to provide that each country is to consult with its relevant professional bodies to obtain recommendations on the form of association between lawyers authorized to practice in it and foreign legal consultants, as well as the development of standards and criteria for authorizing such consultants. The same section of the annex provides that each government is to "establish a work program to develop common procedures throughout its territory for the authorization of foreign legal consultants."

While many of the provisions of NAFTA are general in nature, it is clear that NAFTA seeks to eliminate many of the very kinds of local restrictions to legal practice now common in the regulation of the legal profession, which restrict the free cross-border movement of professionals and of their services. The continued local approach to regulation of the legal profession almost wholly ignores the effect, on the national and international sphere, of the barriers to provision of legal services. It is questionable whether such myopia can or should survive.

(d) European Union Directive 98/5 re Practice of the Profession of Law. In Europe, each country regulates admission and conduct of its own lawyers. Recognizing the increasingly multijurisdictional nature of business and professional transactions, the countries have also joined together as the European Union, through a series of treaties to adopt a number of common regulations which basically seek to treat members as one jurisdiction without internal frontiers. Among the actions taken to promote free movement of professionals within the European Union is Directive 98/5 (OJ 1998 L77/36), adopted in 1998. Its Article 2 allows a lawyer licensed in one of the European Union member states to practice, with very few formalities, in any other of the European Union member states. Luxembourg, a European Union member state, sued to annul the directive in Grand Duchy of Luxembourg v. European Parliament Council of the European Union before the Court of Justice and the Court of First Instance of the European Communities (Docket No. C-168/98). The court upheld the directive by opinion rendered February 24, 2000, with judgment of the court being rendered November 7.

Directive 98/5 essentially allows easy mobility for lawyers and their practices from one jurisdiction to another within the member states of the European Union. It is one possible multijurisdictional model for U.S. jurisdictions which traditionally, under the name of protecting the public, jealously guard their right to regulate lawyers within their jurisdiction and to exclude from that jurisdiction those lawyers who cannot meet the usually burdensome requirements of subjecting themselves to that jurisdiction. The directive speaks only in terms of physical presence in a member jurisdiction and does not address issues of technology or "virtual" presence in a jurisdiction.

Under the directive, a lawyer may practice in any other European Union member state merely by registering with the host jurisdiction, basically by filing a certificate of good standing from his home jurisdiction. The lawyer must use the lawyer's home-jurisdiction professional legal title in the language of his or her home jurisdiction, but can, with only a few exceptions (generally relating to land conveyancing and probate of estates), engage in the general practice of law (including advising as to the law of the host jurisdiction) just as any other lawyer in the host jurisdiction. If the lawyer wants to engage in litigation, the lawyer may have to associate with a host-jurisdiction lawyer. After three years of such practice, the lawyer may seek full admission to practice in the host jurisdiction and use the professional title of the host jurisdiction.

VI. Further Reading

For further information and discussion of issues of multijurisdictional practice, see:

1) American Bar Association, Commission on Multijurisdictional Practice, and extensive materials available at its Web site: http://www.abanet.org/cpr/mjp-home.html.

2) Symposium on the Multijurisdictional Practice of Law, March 10-11, 2000, Fordham University School of Law, New York, NY.

3) Restatement of the Law Third, The Law Governing Lawyers (adopted 1998, published 2000), especially:

•  Section 3 ("Jurisdictional Scope of the Practice of Law by a Lawyer) and Comments e ("Extra-jurisdictional law practice by a lawyer"), f ("Multistate practice by inside legal counsel"), and g ("Authorized practice in a federal agency or court");

•  Section 4 ("Unauthorized Practice by a Nonlawyer"); and

•  Section 5 ("Professional Discipline"), and Comments g ("Lawyer criminal conduct as a basis for jurisdiction") and h ("Jurisdiction to discipline and choice of law in lawyer-disciplinary proceeding");

4) Detlev Vagts, "Professional Responsibility in Transborder Practice: Conflict and Resolution," 13 Georgetown Journal of Legal Ethics 677 (2000);

5) Laurel S. Terry, "GATS' Applicability to Transnational Lawyering and its Potential Impact on U.S. State Regulation of Lawyers," 34 Vanderbilt Journal of Transnational Law, 989 (2001), revised at 35 Vanderbilt J.T.L. No. 1 (2002), available on her Web site: http://www.personal.psu.edu/faculty/l/s/lst3/
publications.htm. The article's more than 300 footnotes contain references to many useful resources. This article is also a principal basis for International Bar Association, GATS – General Agreement on Trade in Services – A Handbook, available for download at http://www.ibanet.org/pdf/homepage/6984_%20GATS.pdf  .

6) American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct, 4th Edition (1999), Rules 5.5 and 8.5 and comments thereto.

7) For information about how the European Union is implementing Directive 98/5, see Guidelines on the Implementation of the Establishment Directive (98/5EC of February 16, 1998) issued by the CCBE for Bars and Law Societies in the European Union, Coordination of the Guidelines Adopted during the Plenary Session of April 24 and 25, 1998 and of the further Guidelines Adopted during the Standing Committees of October 6, 1999 and September 8, 2000.

VII. Conclusion

The legal profession in the United States is at a crossroads on the issue of multijurisdictional practice. The profession's current locally based (or "body-based") regulation makes little sense for a profession whose practice has increasingly become multistate in scope for most lawyers, and is now increasingly becoming multinational and international for many lawyers. This does not mean we need to discard local control. Rather, it means that those in charge of local controls — mostly the state supreme courts, but also the legislatures where appropriate — must work far more closely and cooperatively with one another to coordinate their regulation into a seamless whole which recognizes that solutions to legal problems do not lie merely within the confines of one jurisdiction, whether the legal problem is a business or commercial one, or is an everyday personal issue such as enforcement of court-ordered child-support obligations. They need to recognize the transparency of national and international borders, and that today both litigation and transactions, even garden-variety domestic disputes, are likely to be multijurisdictional. To a large extent, they need to learn to trust one another and then maintain that trust.

If the regulators of the profession are not responsive to the needs of the public and the rapidly changing business practices and increasingly migratory nature of our personal lives, it is quite possible that an important part of that regulation — namely, who can practice law — will instead be taken over by the federal government under the constitutional power of the president to enter international treaties. Lawyers should take deep interest not only in the local aspects of multijurisdictional practice, but also in the negotiation of international treaties relating to trade in services, since those treaties may well determine the direction that the practice of law will take in the future.