Multijurisdictional Practice. The widespread availability of the internet and the increasing affordability of video- and

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1 Multijurisdictional Practice I. Introduction The widespread availability of the internet and the increasing affordability of video- and tele-conferencing have made geographic barriers less relevant in today s society. In this increasingly-connected world, attorneys have few physical barriers preventing expansion of their practices across state lines. With the appropriate video-conferencing software, an attorney practicing law in Florida can discuss trial strategy or the intricacies of a business deal just as easily with a client in Alaska as with a local client. The European Union recently recognized the increasing irrelevance of geographic borders, and now allows an attorney in one EU member country to establish a law practice in another EU member country without having to having to first navigate a tremendous amount of regulatory procedures. 1 Although the American Bar Association has also discussed the idea of eliminating stateby-state rules of professional responsibility, the ABA Commission on Multijurisdictional Practice recently passed a resolution affirming its support for the principle of state judicial regulation of the practice of law. 2 ABA Rule 5.5(a) states that [a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so. 3 Rule 5.5(b) elaborates upon this prohibition, stating that [a] lawyer who is not admitted to practice in this jurisdiction shall not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. 4 Although the Model Rules seem to mark clear jurisdictional boundaries for lawyers to observe in their practices, the 1 American Bar Association Commission on Multijurisdictional Practice, Report to the ABA House of Delegates, Report 201A. available at 2 Id. 3 ABA Model Rule 5.5(a). 4 ABA Model Rule 5.5(b). 1

2 amendments adopted by the ABA in 2002 significantly modified the rules relating to a multijurisdictional practice. 5 II. Before the Amendments: Birbrower v. Superior Court Birbrower, Montalbano Condon & Frank, P.C. v. Superior Court, 6 a case decided by the California Supreme Court in 1998, is often cited as one of the inspirations for the new multijurisdictional practice rules. 7 In Birbrower, a client located in California engaged a New York law firm to represent them in preliminary arbitration discussions and in negotiating any potential settlement offers. 8 The California Supreme Court held that the New York law firm s actions constituted an unauthorized practice of law under the California statutes defining professional responsibility. Because the firm had engaged in the unauthorized practice of law in California, the court prohibited the firm from recovering any legal fees for the services provided to its California client. 9 Concerned with the rationale and ultimate holding in Birbrower, attorneys and legal scholars across the country began discussing possible changes to the ABA Model Rules which would preserve the protections and intentions behind the rules, while allowing the necessary flexibility to accommodate recent technological innovations. III. New ABA Model Rules for Engaging in a Multijurisdictional Practice The 2002 amendments to Model Rule 5.5 allow a lawyer licensed to practice law in one jurisdiction to provide certain legal services in another jurisdiction as long as the lawyer complies with specified conditions. 10 Under Model Rule 5.5(c), a lawyer can now practice law in a jurisdiction in which the lawyer does not hold a license, as long as the lawyer provides only 5 See generally id P.2d 1 (Cal. 1998). 7 Annotated Model Rules of Professional Conduct (5 th ed.), ABA Ctr. For Prof. Respons., Birbrower, 949 P.2d at 3. 9 Id. 10 See generally ABA/BNA Lawyers Manual on Professional Conduct, 18 Current Rep. 477 (2002). 2

3 temporary, limited services in the second jurisdiction. 11 Lauren Barghols Model Rule 5.5(d)(2) allows an attorney licensed in a United States jurisdiction to provide legal services in another jurisdiction, either temporary or permanent, as long as the services provided are those authorized by federal law or other law of the other jurisdiction. 12 A comment to this rule states that the federal or other laws authorizing an attorney to practice in another jurisdiction include statutes, court rules, executive regulations or judicial precedents. 13 Pro Hac Vice Admission Although there are many issues raised by the amendments, this paper will focus on the changes surrounding pro hac vice admissions. The phrase pro hac vice means for this occasion or particular purpose, and it is used to refer to a lawyer who has not been generally admitted to practice law in a particular jurisdiction, but who has been admitted temporarily for the purpose of conducting a certain case. 14 Although every jurisdiction allows attorneys who are not licensed to practice in that jurisdiction to apply for pro hac vice admission, the application process is nonuniform, and the standards for admission vary widely from jurisdiction to jurisdiction. 15 When the ABA adopted its new multijurisdictional practice standards, it also adopted a model pro hac vice admission procedure rule drafted by the newly-formed ABA Multijurisdictional Practice Commission. 16 This model rule, if adopted by the state bar associations, would allow attorneys to follow the same uniform procedure to gain pro hac vice admission into any jurisdiction in the country. The wide-spread adoption of this uniform procedure would substantially reduce the number of procedural barriers preventing an efficient, productive multijurisdictional practice. 11 ABA Model Rule 5.5(c). 12 ABA Model Rule 5.5(d)(2). 13 ABA Model Rule 5.5, cmt Black's Law Dictionary (8th ed. 2004). 15 See generally ABA/BNA Lawyers Manual on Professional Conduct, 21:2001 (Out-of-State Attorneys). 16 Official Website, ABA Commission on Multijurisdictional Practice, at (last visited March 21, 2007). 3

4 The adoption of this uniform procedure would also allow states to ensure that the attorneys admitted to practice in their jurisdiction meet a uniform level of competence, which is the ultimate goal of every jurisdiction s admissions standards. Potential Consequences: Preston v. University of Arkansas for Medical Sciences In Preston v. University of Arkansas for Medical Sciences, 17 the Arkansas Supreme Court addressed the real consequences of an attorney engaging in the unauthorized practice of law. In this case, Richard L. Preston brought a medical malpractice suit against the University of Arkansas hospital and six of its physicians. In his complaint, the Preston alleged that the physicians failed to remove broken screws and screw heads from a failed attempt to anchor a compression plate into his femur during surgery. 18 An x-ray taken three months after the surgery confirmed that displaced screws and screw heads were located in the Preston s muscle tissue surrounding the femur. Preston hired the law firm of Richardson, Stoops, Richardson & Ward, a Tulsa law firm, to sue the University of Arkansas hospital and his physicians. The firm then filed Preston s complaint in Arkansas district court within the established statute of limitations for medical malpractice claims. 19 After receiving notice of the filed suit, the physicians filed a motion to strike Preston s claim, arguing that [t]here have been no filings for request for admission Pro Hac Vice, there is no local counsel involved, and there has been no certificate or affidavit filed with the Court stating that any of the Oklahoma lawyers have agreed to be bound by Arkansas Ark. 666, 128 S.W.3d 430 (2003). 18 Id. at Id. at

5 disciplinary rules. 20 Lauren Barghols One week after the motion to strike was filed, the Tulsa law firm filed motions for admission pro hac vice to practice law before the Arkansas court. 21 After hearing arguments, the Arkansas court granted the physicians motion to strike the complaint, finding that Preston s counsel had engaged in the unauthorized practice of law in Arkansas. 22 As a result, the court held that Preston s complaint was a nullity, and dismissed the case. 23 After he learned of the dismissal, Preston could not re-file his complaint pro se or hire an Arkansas law firm because the statute of limitations had expired. 24 Preston appealed the dismissal to the Arkansas Supreme Court, arguing that he filed his cause of action within the statute of limitations, and that he should not be penalized for his lawyers misconduct. 25 Arkansas Supreme Court affirmed decision The Arkansas unauthorized practice of law rule is similar to ABA Model Rule 5.5, stating that [n]o person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state. In its opinion, the Arkansas Supreme Court noted that the Tulsa attorneys unquestionably were practicing law in Arkansas, because they filed a complaint on behalf of [Preston] in an Arkansas court. 26 The court held that the lawyers did not apply for pro hac vice admission until after they had already engaged in the practice of law in Arkansas, and that the lawyers were not authorized under any other exception to practice law in Arkansas. 27 The Arkansas Supreme Court affirmed the dismissal of Preston s case, noting that the original complaint, as a nullity, never existed, 20 Id. at Id. at Id. at Id. 24 Id. 25 Id. Preston argued that the state has other methods of dealing with the unauthorized practice of law such as dismissal, reversal of a judgment in the cause, and disregarding the actions taken by the unauthorized practitioner. Id. 26 Id. at Id. at

6 and thus, an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected. 28 Lesson for Lawyers with Multijurisdictional Practices Due to his attorneys failure to comply with the rules of professional responsibility, Preston was left with no avenue to seek compensation for the pain and suffering caused by the alleged surgical errors that left pieces of metal floating freely in his thigh. The Arkansas court acknowledged that this result appeared harsh, but also noted that Preston had two years to find Arkansas counsel to represent him, or to have [his] Oklahoma attorneys file an admission to practice pro hac vice with this State before filing [his] complaint. 29 Although this is correct, it does not seem to be good public policy to force citizens to study each state s rules of professional conduct to ensure that their lawyers are not engaging in actions that will result in a dismissal with prejudice. Unfair as it may appear, however, the decision in Preston v. University of Arkansas for Medical Sciences can now be used by other courts as supporting authority, and should be remembered as a lesson on how failure to strictly comply with the rules surrounding the unauthorized practice of law can have very detrimental results, especially to the client. IV. Conclusion Every state has placed restrictions on the practice of law within its jurisdiction in order to protect its citizens from relying on incompetent or unethical attorneys. Recently, however, advocates for less restrictive jurisdictional rules have argued that the current rules are overly exclusive, and deny clients access to perfectly competent and ethical attorneys who would provide excellent services. These attorneys are currently lobbying for more uniform rules of 28 Id. at Id. at

7 professional responsibility and for pro hac vice admissions that would apply equally across all jurisdictions. The ABA Commission on Multijurisdictional Practice has no evidence that multijurisdictional practices constitute a serious disciplinary threat, but the Commission cautions that completely eliminating jurisdictional requirements could possibly increase issues relating to competence. 30 The recent 2002 amendments to ABA Model Rule 5.5 represent a exercise in compromise, as the authors tried to strike a balanced approach to the emerging multijurisdictional trend that would both support the attorney s interest in increasing his area of representation, and consistently protect every client s right to an ethical, competent attorney. 30 Official Website, ABA Commission on Multijurisdictional Practice, at (last visited March 21, 2007). 7