Vol. 77, No. 2, February 2004

Debating MJP Proposal

by George Burnett

The Board of Governors will soon debate a proposal to adopt rules that would permit multijurisdictional practice (MJP) in Wisconsin. Almost two years ago, the American Bar Association (ABA) issued a model rule recommending how and when lawyers may temporarily practice law in a jurisdiction in which they are unlicensed. The ABA proposal is under study in all 50 states; six states have adopted some MJP rule, and proposals are pending in 13 others.

One reason behind the ABA's recommendation of MJP was the California Supreme Court's Birbrower decision, which held that New York lawyers who made several trips to California while representing a California client in a pending arbitration practiced law without a license in California and therefore forfeited their fee.

Another reason was a desire to develop a rule that reflected modern practice. Attending depositions outside Wisconsin, handling business transactions centered in another state for Wisconsin businesses, or advising Wisconsin clients about common legal problems encountered elsewhere are routine occurrences for many Wisconsin practitioners. Yet, all states forbid unlicensed lawyers from practicing in their jurisdiction and Wis. Stat. section 757.30 criminalizes such conduct here. Our ethical rules prohibit a Wisconsin lawyer's unauthorized practice of law in a foreign jurisdiction (SCR § 20:5.5) and make that lawyer subject to Wisconsin discipline "regardless of where the lawyer's conduct occurred." (SCR § 20:8.5)

There are two conflicting principles at play. On the one hand, some note that most legal rights are still local, so quality legal representation for the public depends on lawyers knowledgeable about state law. Wisconsin lawyers are best able to provide accurate Wisconsin legal advice and our rules should not allow other lawyers to substitute, especially on a temporary basis.

On the other hand, many clients, especially sophisticated clients, have legal issues that transcend state boundaries, problems that are efficiently resolved without employing local counsel. For many years now, lawyers have handled those problems on which they are competent and have sought advice from colleagues in other states for those problems on which they are not.

Electing the latter view, a State Bar study committee on which I served spent almost a year looking at a possible Wisconsin version of the ABA model rule.

Wisconsin's Proposed MJP Rule

The core of the Wisconsin Multijurisdictional Task Force proposal modifies SCR § 20:5.5, which currently forbids a Wisconsin lawyer from practicing law in a jurisdiction where doing so violates that state's regulations. The changes will allow for the temporary practice in Wisconsin by attorneys who are not licensed here.

The proposal forbids all unlicensed lawyers from practicing law from a Wisconsin office or maintaining a "systematic and continuous presence" here. Exceptions, however, allow lawyers who hold a valid law license elsewhere to provide legal services in Wisconsin "on an occasional basis," if the representation:

1) is undertaken in association with a Wisconsin lawyer who actively participates; or

2) is "reasonably related" to a pending or potential arbitration, mediation, or ADR proceeding; or

3) is "reasonably related" to any proceeding in which the lawyer has appeared or expects to appear without court approval; or

4) "arises out of or is reasonably related to" the lawyer's practice in a jurisdiction in which the lawyer is admitted.

The new rules also make exception for some services that federal government and military lawyers provide and tighten procedures for pro hac vice admission, requiring applicants to file with the admitting court, the Office of Lawyer Regulation (OLR), and the State Bar. The proposals provide limited admission for in-house counsel, who must be graduates of an ABA-approved law school and meet character and fitness requirements but who need not pass a bar exam. Their authorization to practice law is confined to work for their employer; the limited license ends when employment ends.

Discipline. One practical concern is discipline, because Wisconsin cannot fully discipline a temporary lawyer. While the OLR can charge an out-of-state lawyer and most states accept those disciplinary findings as binding, the power to discipline is the power to penalize and the ultimate disciplinary decision falls to non-Wisconsin authorities.

At the same time, discipline represents one significant change from the ABA model. Under the task force's proposed rule, a Wisconsin lawyer may not be disciplined here for violating another state's MJP rules if those rules are harsher than Wisconsin's. That reciprocity means that if Wisconsin opens its borders to outside practitioners on a temporary basis, other states must do so on the same terms. That will go a long way in ensuring that a Wisconsin lawyer will not be disciplined elsewhere for doing what an out-of-state lawyer could do here.

Conclusion

Some question whether the new MJP rules offer improvement. They say that because present rules are out of step with modern practice, the rules are rarely enforced, but replacing those rules with others that can only vaguely guide conduct will only see those new rules ignored as well. They ask what is a "systematic and continuous presence" in Wisconsin? Does "presence" mean advertising or include an electronic or telephone practice? Or must an outside lawyer be physically present here to violate the rule? They inquire what does it really mean that the matter be "reasonably related" to the lawyer's practice elsewhere? They contend authorizing a lawyer to practice here "on an occasional basis" provides little guidance to anyone, including outside lawyers coming here.

These are all good questions, but each meets the same response: the proposed rule modernizes existing rules to conform to current practice; most of our ethical rules are written in general, not specific, terms; and the scenarios the rule covers are too varied for more precise wording and, despite considerable effort, no drafter has developed better language. There is good reason that the inquiry has taken the ABA two years of intense effort and why states like Wisconsin have proceeded with caution and deliberation.

The days when the practice of law was confined by state borders have passed. The task force's proposal improves the practice of law by ensuring our ethical rules reflect the realities of our practice.

Wisconsin Lawyer