Multijurisdictional Practice of Law: Its Prevalence and Its Risks
| Jurisdiction | Connecticut,United States |
| Publication year | 2021 |
| Citation | Vol. 74 Pg. 343 |
| Pages | 343 |
74 CBJ 343. MULTIJURISDICTIONAL PRACTICE OF LAW: ITS PREVALENCE AND ITS RISKS
In December 2000 the Fellows of the Connecticut Bar Foundation sponsored a symposium on multijurisdictional practice of law. This article summarizes what the symposium covered. It emphasizes the importance of multijurisdictional law practice to Connecticut lawyers and the current concern of many lawyers in this state that they risk serious sanctions for engaging in this type of practice. Legal restrictions on multijurisdictional law practice exist in most all states but have been widely ignored, rarely enforced and usually treated as irrelevancies. What has generated the current concern is recognition that these apparent "irrelevancies" may not be so irrelevant after all and unless sharply curtailed may be costly restraints on the practice of law by important segments of the Connecticut bar and their counterparts in other jurisdictions. As one symposium commentator remarked, the situation is analogous to the sleeping dog that has finally awakened and is now threatening everyone in sight.
The principal triggering event causing the current concern is a 1998 opinion of the California Supreme Court in a multijurisdictional practice case, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court.(fn1) In its opinion, the California high court held that two out-of-state lawyers not admitted to practice law in California, but who came to California and provided legal services to a client, were acting illegally in violation of California's unauthorized practice laws. As a result, the court denied the law firm's claimed legal fees for its lawyers' work in California - fees totaling about one million dol
lars. Even if the out-of-state lawyers had been associated with local counsel, the court said that the out-of-state lawyers still would have been engaged in the unauthorized practice of law and not entitled to be paid for their work in California.(fn2)
What the lawyers in the Birbrower case had done was similar to what has been a common practice throughout the United States when lawyers represent clients in matters requiring action in a state where the lawyers are not admitted. The concern created by Birbrower is that other states may follow the lead of the California Supreme Court and start applying their unauthorized practice laws against out-of-state lawyers. Most state unauthorized practice laws as they now exist are subject to interpretations similar to what the California Supreme Court gave to its laws. There is an obvious need to clarify and amend the laws in every state pertaining to multijurisdictional law practice if the risks from such practice are to be substantially eliminated. In support of such legal change many argue that the economy is increasingly national, even global, and that lawyers should be able to function efficiently in this modern economy without risk of undue legal restraint. Recognizing the gravity of the problem, the American Bar Association and many state bar associations, including the Connecticut Bar Association, have since the Birbrower opinion appointed commissions or task forces to study the multijurisdictional practice of law issue and come up with proposals as to what legal changes in the controlling law should be made. Over the next year or so reports can be expected from these study groups.
It should be stressed, however, that the problem is not an easy one to resolve. The variety of different forms that multijurisdictional practice can take greatly complicates reform efforts. Moreover, there is lack of consensus in the bar as to what changes, if any, should be made in the law pertaining to multijurisdictional law practice. Different segments of the practicing bar generally have quite different views on
needed reforms. Lawyers in big firms and corporate law departments usually favor considerable liberalizing of unauthorized practice laws to permit enhanced multijurisdictional law practice by lawyers irrespective of where they are admitted to practice. But many other lawyers, especially many in small firms, are opposed to much if any liberalizing of these unauthorized practice laws.
Given the growing post-Birbrower concern over multijurisdictional law practice, the Fellows of the Connecticut Bar Foundation decided that a symposium on the multijurisdictional practice problem as it affected Connecticut lawyers would be timely and would help the bar better understand the full implications of the problem. The resulting symposium sought particularly to provide an opportunity for representatives of different segments of the practicing profession in Connecticut most concerned about the multijurisdictional practice problem to give their views on multijurisdictional law practice and the need for changing or retaining legal restrictions on such practice. The panelists who made presentations were mostly from large law firms, small law firms and corporate law departments. Those in the audience had an opportunity to ask questions and the audience consisted mostly of lawyers from one or another of these same three segments of the practicing bar in Connecticut.
As keynote speaker, the symposium was very fortunate to have Professor Charles W. Wolfram of Cornell Law School. Professor Wolfram is a distinguished national authority on the professional responsibility of lawyers and Chief Reporter for the Restatement of the Law Governing Lawyers, a comprehensive undertaking that includes coverage of multijurisdictional law practice.(fn3) In his keynote presentation, Professor Wolfram reviewed the history of unauthorized practice laws, outlined the legal restrictions on multijurisdictional law practice, analyzed the recent Birbrower opinion in considerable detail, and discussed some of the proposed changes in the law pertaining to multijurisdictional law practice. Following Pro
fessor Wolfram's remarks, there were three panel discussions, one on Multijurisdictional Practice by Transactional Lawyers, one on Multijurisdictional Practice by Connecticut House Counsel, and one on the Interests of the State and Connecticut Lawyers. The symposium concluded with a wrap-up by Ralph Elliot, who, among his many other responsibilities, is a member of the ABA's Standing Committee on Professional Discipline, and simultaneously serves as its liaison member to the ABA Commission on Multijurisdictional Practice.(fn4)
The review of the symposium that follows summarizes in some detail the major aspects of multijurisdictional law practice that emerged from the symposium presentations and follow-up discussions. Essential background information and analysis are provided where needed.
As was evident from the remarks of those who spoke at the symposium, multijurisdictional law practice is a very complex subject and an appreciation of this complexity is essential to an understanding of why satisfactorily drafting and then securing adoption of any comprehensive reform of the laws governing this kind of practice will prove so difficult. The complexity is due primarily to the many variables possible in multijurisdictional practice, variables such as where, how, by whom and for whom it is conducted, any of which may become relevant to whether or not the practice is or should be considered legally permissible. The diversity of multijurisdictional law practice is best illustrated by a series of examples, each example including one or more different variables that may be crucial determinants as to the legality of the practice. Such a listing also is helpful in law reform efforts, for it poses some of the hard problems as to where lines should be drawn between what is and is not legally acceptable.
The listing that appears below starts with a set of facts common in present-day multijurisdictional law practice, essen
tially the facts in the Birbrower case. Examples listed thereafter are variations on this initial one, whether or not consistent with applicable current laws. Obviously the examples listed are not the only conceivable ones; many others could be added.
- L, a lawyer admitted to practice law in State A, but not State B, briefly goes to B to represent C, whose operations are based in B. C is a client of the law firm in which L is a partner. L is representing C in a controversy with D. While in B, L gives legal advice to C on the law...
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