When I cover the duties owed to clients in class, I tell my students to remember the grades they do not want: Cs, Ds and Fs. This is a trick to get them to remember some basic concepts: Competence, Confidentiality, Communication, Conflicts, Candor, Diligence and Fiduciary. If you want another C, you can add civility.
I am writing about this today because Mike Kennedy, Vermont's Bar Counsel, recently posted a short video on the subject here.
Back in April I reported (here) that the Association of Professional Responsibility Lawyers (APRL) formally submitted a proposal to the ABA asking it to adopt a new version of Model Rule 5.5 that would eliminate the traditional state-based limitation on law practice, by which lawyers can practice only in the states in which they are admitted. According to the proposal lawyers should be allowed to practice anywhere in the country as long as they are admitted somewhere in the country.
This issue has been raised and debated many times and, unfortunately in my opinion, the prevailing view remains that jurisdictions should be allowed to close their borders to "outsiders." For this reason, I support the suggested changes.
If you want more information on the issue, here is a link to a podcast in which APRL President Brian Faughnan discusses the proposal. You can also listen to the podcast by clicking on the play button below or here.
A recent proposal has been presented to amend a number rules in Vermont. Vermont's Bar Counsel, Mike Kennedy, goes over the proposed changes in detail in a video posted to his YouTube channel here.
April 24, 2022
Because of the pandemic, many lawyers were forced to start practicing remotely and for some of them this meant practicing "across borders," meaning that the lawyer was located in a different jurisdiction than the one they were practicing in. This is not unusual. Lawyers who practice in New York may live in New Jersey; lawyers in Chicago may live in Wisconsin or Indiana, etc.
In response to this "new normal," a number of jurisdictions have issued recent opinions on practicing law remotely, and as much as I can remember they all said it would be allowed subject to some obvious restrictions (most notably that the lawyer could not pretend to be admitted in a jurisdiction in which they were not, or have a "presence" or an office, in a jurisdiction in which they were not admitted, and so on.)
But the situation also helped revive a very old debate: whether lawyers should be allowed to practice anywhere in the country as long as they are admitted somewhere in the country. This issue has been raised and debated many times and, unfortunately in my opinion, the prevailing view remains that jurisdictions should be allowed to close their borders to "outsiders."
I have never liked this approach and I am happy to report that the Association of Professional Responsibility Lawyers (APRL) is addressing the issue again. In a letter to the ABA, APRL has included a report and a proposal urging the ABA to adopt a new version of Model Rule 5.5 that would eliminate the traditional state-based limitation on law practice, by which lawyers can practice only in the states in which they are admitted. (Follow the links to the text of the letter, report and proposed amendment.)
You can read more on the story in Faughnan on Ethics (the blog of the current president of APRL), the ABA Journal, and LawSites.
Allowing lawyers to practice across borders will favor the bigger law firms with lots of resources, but I think it will also be beneficial for small firms and solo lawyers who want to move to new locations for any number of reasons. And it will likely have a positive impact in the ability of clients to find lawyers, thus improving access to legal representation -- a goal we have been casing after since forever.
Does the proposal have a chance of getting adopted? I don't know. A couple of years ago, I would have said definitely not. But back then I would also have said that proposals to allow partnerships with non-lawyers, alternative business structures and provision of legal services by non-lawyers did not have a chance and now we have two states that have adopted all of these and more states actively considering similar alternatives.... so what do I know. Change is slow in the legal profession, but it does happen sometimes...
UPDATE 5/4/22: Lex Blog has published a comment on this topic here.
One of the most debated issues in the Professional Responsibility arena in the past year has been whether states can force lawyers to join a bar association, or, in other words, whether it is a violation of a lawyer's constitutional rights to be forced to become a member of a bar association as a pre-requisite to practice law in the jurisdiction. I have been posting updates on cases from around the nation on this for over a year. See here, and scroll down for all the stories (from Texas, Michigan, Oregon and Utah, among others).
Today I am writing with an update related to the rules in Wisconsin.
The Seventh Circuit recently upheld a ruling against an attorney challenging rules enforced by the Wisconsin Supreme Court requiring all lawyers licensed to practice in the state to be members and pay dues to the state bar.
The opinion of the court starts with a summary, as follows:
Under rules adopted and enforced by the Wisconsin Supreme Court, all lawyers licensed to practice in the state must be members of and pay dues to the State Bar of Wisconsin, a professional association created by the court. Attorney Schuyler File contends that requiring him to join and subsidize the State Bar violates his free speech and associational rights under the First Amendment. Recognizing that Supreme Court precedent forecloses this claim, see Keller v. State Bar of Cal., 496 U.S. 1 (1990), File maintains that the Court’s more recent cases—particularly Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018)—implicitly overruled Keller.
The district court rejected this argument, and properly so. Keller may be difficult to square with the Supreme Court’s more recent First Amendment caselaw, but on multiple occasions and in no uncertain terms, the Court has instructed lower courts to resist invitations to find its decisions overruled by implication. Keller is binding. We affirm.
You can read the full opinion here.
