Yesterday was potentially a very big day in the world of lawyers and clients. I am very pleased to report that yesterday the Association of Professional Responsibility Lawyers released a proposed overhaul of Model Rule 5.5., called on the ABA to take action to adopt it, and disseminated a very thorough and detailed Report explaining why the kind of reform called for by the rule proposal is both entirely justified and long overdue.
I have spent some time over the last 24 hours talking with a few reporters about this development, and I intend to update this post with links to stories as they come out. But talking the situation through with reporters has also, I think, helped me distill down a bit how best to describe the potential significance of this proposal and how strikingly different it is from the sort of “stop gap” measures that exist today with respect to various ethics opinions that have been put out by states during the course of the pandemic.
First, because readers of the blog know that I seem to always manage to quote myself when I can, here is an excerpt from my letter to the current President of the ABA that describes what APRL is proposing:
Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.
Second, while I am only one of 10 co-authors of the Report itself, I want to highlight a very important portion of that report (obviously written by someone else with better writing skills) in terms of how a fallacy about how competence as a lawyer works under the current approach to lawyering and how that feeds into a disconnect that impacts problems with access to legal services:
A lawyer’s voluntary devotion to one area of practice, however, in no way restricts the scope of the lawyer’s license in their state. An attorney with 20 years of experience, but only involving family law, who learns of a neighbor’s, relative’s, or former client’s severe car accident may agree to represent that person. Similarly, a lawyer who, following admission to the bar, works in a non-legal setting for twenty years, faces no licensing restrictions in taking on that same personal injury case as long as they have an active law license. Moreover, a newly minted lawyer immediately after passing the bar could take on a family law case, a car-accident lawsuit, and a contract negotiation with a hospital for a physician. The lawyers in these scenarios might not be the best lawyers for the job, but the Rules of Professional Conduct assume that the lawyers can educate themselves about the subject matter and competently handle the case. See Rule 1.1, cmt. .
The “Competency Fallacy of Rule 5.5,” however, dictates that a lawyer licensed in “State A”, who has devoted their entire career to personal injury work for example, would not be competent to represent the car-accident victim described above (without the association of local counsel) because the lawyer is presumed to be incapable of knowing or coming to understand “the law of State B.” Instead, if that State A-licensed lawyer wanted to be able to regularly represent clients with personal injury cases in State B, the lawyer would have to obtain a second license to practice law, a license issued by State B. Those who accept the current systemic issues often rely upon arguments that lawyers who wish to be able to practice across state lines more freely can simply obtain such additional licenses through reciprocity. This option to pursue additional licenses through reciprocity is not an adequate solution, and for many jurisdictions, is simply not true.
APRL’s proposal is a long-time coming but also long overdue.
If you believe that our profession’s approach to the multi-jurisdictional practice of law needs to change, I would encourage you to support APRL’s efforts and speak out to help us effectuate change in your jurisdiction. The current ABA Model Rule, along with a variety of state ethics opinions issued during the pandemic, have given some solace to lawyers about what might be okay on a “temporary” basis.
APRL’s proposal, however, would lend permanence to the idea that as long as a lawyer is transparent with their client about where they are licensed, then they could live or have an office anywhere without fear that representing a client in some other state or assisting a client with navigating and interpreting the law of some other state would be unethical or illegal. Our proposal would also improve the lives of lawyers with traditional practices who go into the office of their firm every day and live and work in the same jurisdiction because they would not have to second-guess whether a client who wants to hire them can do so without also having to enlist the assistance of an additional lawyer simply because that other lawyer is “local.”
As an earlier portion of the APRL Report explains, APRL’s proposal:
acknowledges that clients must continue to be protected from the incompetent practice of law. However, the proposal also elevates the client’s right to choose counsel to a co-equal status in the context of the regulation of multijurisdictional practice and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries that prevent clients from choosing competent counsel of their choice even if the lawyer they choose is licensed elsewhere.
A copy of my letter to ABA President Turner, APRL’s proposed Rule 5.5, and the Report can be accessed at the link below.
To date, the only story I know that is up is this first, short one from Bob Ambrogi.
But stay tuned …
Edited to add additional articles: