The Future of Ethics for In-House Counsel - ACC.com

Transcription

THE FUTURE OF ETHICS FOR IN-HOUSE COUNSEL
An ACC Advocacy Panel
Wisconsin Chapter
Brookfield, Wisconsin
October 2, 2014
ABA Model Rule of Professional Conduct 1.6 and commentary (attorneyclient privilege and confidentiality)………............................................Page 1
ABA Model Rule of Professional Conduct 1.7, Conflict of Interest: Current
Clients...................................................................................................Page 10
ABA Model Rule of Professional Conduct 5.5 and commentary
(multijurisdictional practice/foreign in-house practice in the U.S.)
………..................................................................................................Page 11
ABA Commission on Ethics 20/20 Proposal 107A Revised and commentary
(multijurisdictional practice/foreign in-house practice in the U.S.)
………..................................................................................................Page 19
ACC comments on proposed amendments to ABA Model Rules concerning
foreign in-house lawyers who practice in the U.S. (multijurisdictional
practice/foreign in-house practice in the U.S.)……….........................Page 39
Association of Corporate Counsel letter to Conference of Chief Justices in
support of resolution to reduce obstacles that prevent in-house lawyers from
offering pro bono services (July 2012).................................................Page 53
Association of Corporate Counsel amicus brief regarding duty of loyalty, in
Crimson Trace Corp. v. Davis Wright Tremaine, No. S061086 (Or.)
(filed Aug. 2013)..................................................................................Page 68
Rule 1.6: Confidentiality of Information | The Center for Professional Responsibility
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Home > ABA Groups > Center for Professional Responsibility > Publications > Model Rules of
Professional Conduct > Rule 1.6: Confidentiality of Information
Rule 1.6: Confidentiality of Information
Client-Lawyer Relationship
Rule 1.6 Confidentiality Of Information
(a) A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry
out the representation or the disclosure is permitted by paragraph
(b).
(b) A lawyer may reveal information relating to the representation
of a client to the extent the lawyer reasonably believes
necessary:
(1) to prevent reasonably certain death or substantial bodily
harm;
(2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the
financial interests or property of another that is reasonably
certain to result or has resulted from the client's commission of a
crime or fraud in furtherance of which the client has used the
lawyer's services;
(4) to secure legal advice about the lawyer's compliance with
these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer
based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer's
representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the
lawyer’s change of employment or from changes in the
composition or ownership of a firm, but only if the revealed
information would not compromise the attorney-client privilege or
otherwise prejudice the client.
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Rule 1.6: Confidentiality of Information | The Center for Professional Responsibility
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(c) A lawyer shall make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or unauthorized access
to, information relating to the representation of a client.
Comment | Table of Contents | Next Rule
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Comment on Rule 1.6 | The Center for Professional Responsibility
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Professional Conduct > Rule 1.6: Confidentiality of Information > Comment on Rule 1.6
Comment on Rule 1.6
Rule 1.6 Confidentiality Of Information - Comment
[1] This Rule governs the disclosure by a lawyer of information
relating to the representation of a client during the lawyer's
representation of the client. See Rule 1.18 for the lawyer's duties
with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer's duty not to
reveal information relating to the lawyer's prior representation of
a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's
duties with respect to the use of such information to the
disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is
that, in the absence of the client's informed consent, the lawyer
must not reveal information relating to the representation. See
Rule 1.0(e) for the definition of informed consent. This
contributes to the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the lawyer
even as to embarrassing or legally damaging subject matter. The
lawyer needs this information to represent the client effectively
and, if necessary, to advise the client to refrain from wrongful
conduct. Almost without exception, clients come to lawyers in
order to determine their rights and what is, in the complex of
laws and regulations, deemed to be legal and correct. Based upon
experience, lawyers know that almost all clients follow the advice
given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by
related bodies of law: the attorney-client privilege, the work
product doctrine and the rule of confidentiality established in
professional ethics. The attorney-client privilege and work product
doctrine apply in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law.
The confidentiality rule, for example, applies not only to matters
communicated in confidence by the client but also to all
information
relating to the representation, whatever its source. A
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lawyer may not disclose such information except as authorized or
required by the Rules of Professional Conduct or other law. See
also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information
relating to the representation of a client. This prohibition also
applies to disclosures by a lawyer that do not in themselves
reveal protected information but could reasonably lead to the
discovery of such information by a third person. A lawyer's use of
a hypothetical to discuss issues relating to the representation is
permissible so long as there is no reasonable likelihood that the
listener will be able to ascertain the identity of the client or the
situation involved.
Authorized Disclosure
[5] Except to the extent that the client's instructions or special
circumstances limit that authority, a lawyer is impliedly
authorized to make disclosures about a client when appropriate in
carrying out the representation. In some situations, for example,
a lawyer may be impliedly authorized to admit a fact that cannot
properly be disputed or to make a disclosure that facilitates a
satisfactory conclusion to a matter. Lawyers in a firm may, in the
course of the firm's practice, disclose to each other information
relating to a client of the firm, unless the client has instructed
that particular information be confined to specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict
rule requiring lawyers to preserve the confidentiality of
information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. Paragraph (b)
(1) recognizes the overriding value of life and physical integrity
and permits disclosure reasonably necessary to prevent
reasonably certain death or substantial bodily harm. Such harm is
reasonably certain to occur if it will be suffered imminently or if
there is a present and substantial threat that a person will suffer
such harm at a later date if the lawyer fails to take action
necessary to eliminate the threat. Thus, a lawyer who knows that
a client has accidentally discharged toxic waste into a town's
water supply may reveal this information to the authorities if
there is a present and substantial risk that a person who drinks
the water will contract a life-threatening or debilitating disease
and the lawyer's disclosure is necessary to eliminate the threat or
reduce the number of victims.
[7] Paragraph (b)(2) is a limited exception to the rule of
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confidentiality that permits the lawyer to reveal information to the
extent necessary to enable affected persons or appropriate
authorities to prevent the client from committing a crime or fraud,
as defined in Rule 1.0(d), that is reasonably certain to result in
substantial injury to the financial or property interests of another
and in furtherance of which the client has used or is using the
lawyer’s services. Such a serious abuse of the client-lawyer
relationship by the client forfeits the protection of this Rule. The
client can, of course, prevent such disclosure by refraining from
the wrongful conduct. Although paragraph (b)(2) does not require
the lawyer to reveal the client’s misconduct, the lawyer may not
counsel or assist the client in conduct the lawyer knows is
criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with
respect to the lawyer’s obligation or right to withdraw from the
representation of the client in such circumstances, and Rule
1.13(c), which permits the lawyer, where the client is an
organization, to reveal information relating to the representation
in limited circumstances.
[8] Paragraph (b)(3) addresses the situation in which the lawyer
does not learn of the client’s crime or fraud until after it has been
consummated. Although the client no longer has the option of
preventing disclosure by refraining from the wrongful conduct,
there will be situations in which the loss suffered by the affected
person can be prevented, rectified or mitigated. In such
situations, the lawyer may disclose information relating to the
representation to the extent necessary to enable the affected
persons to prevent or mitigate reasonably certain losses or to
attempt to recoup their losses. Paragraph (b)(3) does not apply
when a person who has committed a crime or fraud thereafter
employs a lawyer for representation concerning that offense.
[9] A lawyer's confidentiality obligations do not preclude a lawyer
from securing confidential legal advice about the lawyer's
personal responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice will be
impliedly authorized for the lawyer to carry out the
representation. Even when the disclosure is not impliedly
authorized, paragraph (b)(4) permits such disclosure because of
the importance of a lawyer's compliance with the Rules of
Professional Conduct.
[10] Where a legal claim or disciplinary charge alleges complicity
of the lawyer in a client's conduct or other misconduct of the
lawyer involving representation of the client, the lawyer may
respond to the extent the lawyer reasonably believes necessary to
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establish a defense. The same is true with respect to a claim
involving the conduct or representation of a former client. Such a
charge can arise in a civil, criminal, disciplinary or other
proceeding and can be based on a wrong allegedly committed by
the lawyer against the client or on a wrong alleged by a third
person, for example, a person claiming to have been defrauded
by the lawyer and client acting together. The lawyer's right to
respond arises when an assertion of such complicity has been
made. Paragraph (b)(5) does not require the lawyer to await the
commencement of an action or proceeding that charges such
complicity, so that the defense may be established by responding
directly to a third party who has made such an assertion. The
right to defend also applies, of course, where a proceeding has
been commenced.
[11] A lawyer entitled to a fee is permitted by paragraph (b)(5)
to prove the services rendered in an action to collect it. This
aspect of the rule expresses the principle that the beneficiary of a
fiduciary relationship may not exploit it to the detriment of the
fiduciary.
[12] Other law may require that a lawyer disclose information
about a client. Whether such a law supersedes Rule 1.6 is a
question of law beyond the scope of these Rules. When disclosure
of information relating to the representation appears to be
required by other law, the lawyer must discuss the matter with
the client to the extent required by Rule 1.4. If, however, the
other law supersedes this Rule and requires disclosure, paragraph
(b)(6) permits the lawyer to make such disclosures as are
necessary to comply with the law.
Detection of Conflicts of Interest
[13] Paragraph (b)(7) recognizes that lawyers in different firms
may need to disclose limited information to each other to detect
and resolve conflicts of interest, such as when a lawyer is
considering an association with another firm, two or more firms
are considering a merger, or a lawyer is considering the purchase
of a law practice. See Rule 1.17, Comment [7]. Under these
circumstances, lawyers and law firms are permitted to disclose
limited information, but only once substantive discussions
regarding the new relationship have occurred. Any such
disclosure should ordinarily include no more than the identity of
the persons and entities involved in a matter, a brief summary of
the general issues involved, and information about whether the
matter has terminated. Even this limited information, however,
should
be disclosed only to the extent reasonably necessary to
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detect and resolve conflicts of interest that might arise from the
possible new relationship. Moreover, the disclosure of any
information is prohibited if it would compromise the attorneyclient privilege or otherwise prejudice the client (e.g., the fact
that a corporate client is seeking advice on a corporate takeover
that has not been publicly announced; that a person has
consulted a lawyer about the possibility of divorce before the
person's intentions are known to the person's spouse; or that a
person has consulted a lawyer about a criminal investigation that
has not led to a public charge). Under those circumstances,
paragraph (a) prohibits disclosure unless the client or former
client gives informed consent. A lawyer’s fiduciary duty to the
lawyer’s firm may also govern a lawyer’s conduct when exploring
an association with another firm and is beyond the scope of these
Rules.
[14] Any information disclosed pursuant to paragraph (b)(7)
may be used or further disclosed only to the extent necessary to
detect and resolve conflicts of interest. Paragraph (b)(7) does
not restrict the use of information acquired by means independent
of any disclosure pursuant to paragraph (b)(7). Paragraph (b)(7)
also does not affect the disclosure of information within a law firm
when the disclosure is otherwise authorized, see Comment [5],
such as when a lawyer in a firm discloses information to another
lawyer in the same firm to detect and resolve conflicts of interest
that could arise in connection with undertaking a new
representation.
[15] A lawyer may be ordered to reveal information relating to
the representation of a client by a court or by another tribunal or
governmental entity claiming authority pursuant to other law to
compel the disclosure. Absent informed consent of the client to do
otherwise, the lawyer should assert on behalf of the client all
nonfrivolous claims that the order is not authorized by other law
or that the information sought is protected against disclosure by
the attorney-client privilege or other applicable law. In the event
of an adverse ruling, the lawyer must consult with the client
about the possibility of appeal to the extent required by Rule 1.4.
Unless review is sought, however, paragraph (b)(6) permits the
lawyer to comply with the court's order.
[16] Paragraph (b) permits disclosure only to the extent the
lawyer reasonably believes the disclosure is necessary to
accomplish one of the purposes specified. Where practicable, the
lawyer should first seek to persuade the client to take suitable
action to obviate the need for disclosure. In any case, a disclosure
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adverse to the client's interest should be no greater than the
lawyer reasonably believes necessary to accomplish the purpose.
If the disclosure will be made in connection with a judicial
proceeding, the disclosure should be made in a manner that limits
access to the information to the tribunal or other persons having
a need to know it and appropriate protective orders or other
arrangements should be sought by the lawyer to the fullest extent
practicable.
[17] Paragraph (b) permits but does not require the disclosure
of information relating to a client's representation to accomplish
the purposes specified in paragraphs (b)(1) through (b)(6). In
exercising the discretion conferred by this Rule, the lawyer may
consider such factors as the nature of the lawyer's relationship
with the client and with those who might be injured by the client,
the lawyer's own involvement in the transaction and factors that
may extenuate the conduct in question. A lawyer's decision not to
disclose as permitted by paragraph (b) does not violate this Rule.
Disclosure may be required, however, by other Rules. Some Rules
require disclosure only if such disclosure would be permitted by
paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on
the other hand, requires disclosure in some circumstances
regardless of whether such disclosure is permitted by this Rule.
See Rule 3.3(c).
Acting Competently to Preserve Confidentiality
[18] Paragraph (c) requires a lawyer to act competently to
safeguard information relating to the representation of a client
against unauthorized access by third parties and against
inadvertent or unauthorized disclosure by the lawyer or other
persons who are participating in the representation of the client
or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1
and 5.3. The unauthorized access to, or the inadvertent or
unauthorized disclosure of, information relating to the
representation of a client does not constitute a violation of
paragraph (c) if the lawyer has made reasonable efforts to
prevent the access or disclosure. Factors to be considered in
determining the reasonableness of the lawyer’s efforts include,
but are not limited to, the sensitivity of the information, the
likelihood of disclosure if additional safeguards are not employed,
the cost of employing additional safeguards, the difficulty of
implementing the safeguards, and the extent to which the
safeguards adversely affect the lawyer’s ability to represent
clients (e.g., by making a device or important piece of software
excessively difficult to use). A client may require the lawyer to
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implement special security measures not required by this Rule or
may give informed consent to forgo security measures that would
otherwise be required by this Rule. Whether a lawyer may be
required to take additional steps to safeguard a client’s
information in order to comply with other law, such as state and
federal laws that govern data privacy or that impose notification
requirements upon the loss of, or unauthorized access to,
electronic information, is beyond the scope of these Rules. For a
lawyer’s duties when sharing information with nonlawyers outside
the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].
[19] When transmitting a communication that includes
information relating to the representation of a client, the lawyer
must take reasonable precautions to prevent the information from
coming into the hands of unintended recipients. This duty,
however, does not require that the lawyer use special security
measures if the method of communication affords a reasonable
expectation of privacy. Special circumstances, however, may
warrant special precautions. Factors to be considered in
determining the reasonableness of the lawyer's expectation of
confidentiality include the sensitivity of the information and the
extent to which the privacy of the communication is protected by
law or by a confidentiality agreement. A client may require the
lawyer to implement special security measures not required by
this Rule or may give informed consent to the use of a means of
communication that would otherwise be prohibited by this Rule.
Whether a lawyer may be required to take additional steps in
order to comply with other law, such as state and federal laws
that govern data privacy, is beyond the scope of these Rules.
Former Client
[20] The duty of confidentiality continues after the client-lawyer
relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)
(1) for the prohibition against using such information to the
disadvantage of the former client.
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Rule 1.7: Conflict of Interest: Current Clients | The Center for Professional Responsibility
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Professional Conduct
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.7 Conflict Of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a third person
or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected
client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in
writing.
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Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law | The Center for Professional Responsibility
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Professional Conduct > Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law
Rule 5.5: Unauthorized Practice of Law; Multijurisdictional
Practice of Law
Law Firms And Associations
Rule 5.5 Unauthorized Practice Of Law;
Multijurisdictional Practice Of Law
(a) 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.
(b) A lawyer who is not admitted to practice in this jurisdiction
shall not:
(1) except as authorized by these Rules or other law, establish an
office or other systematic and continuous presence in this
jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer
is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and
not disbarred or suspended from practice in any jurisdiction, may
provide legal services on a temporary basis in this jurisdiction
that:
(1) are undertaken in association with a lawyer who is admitted
to practice in this jurisdiction and who actively participates in the
matter;
(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another jurisdiction, if the
lawyer, or a person the lawyer is assisting, is authorized by law or
order to appear in such proceeding or reasonably expects to be so
authorized;
(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution
proceeding in this or another jurisdiction, if the services arise out
of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice and are not
services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or
are reasonably related to the lawyer’s practice in a jurisdiction in
which the lawyer is admitted to practice.
12 A lawyer admitted in another United States jurisdiction or in a
(d)
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foreign jurisdiction, and not disbarred or suspended from practice
in any jurisdiction or the equivalent thereof, may provide legal
services through an office or other systematic and continuous
presence in this jurisdiction that :
(1) are provided to the lawyer’s employer or its organizational
affiliates; are not services for which the forum requires pro hac
vice admission; and, when performed by a foreign lawyer and
requires advice on the law of this or another jurisdiction or of the
United States, such advice shall be based upon the advice of a
lawyer who is duly licensed and authorized by the jurisdiction to
provide such advice; or
(2) are services that the lawyer is authorized by federal or other
law or rule to provide in this jurisdiction.
(e) For purposes of paragraph (d), the foreign lawyer must be a
member in good standing of a recognized legal profession in a
foreign jurisdiction, the members of which are admitted to
practice as lawyers or counselors at law or the equivalent, and
are subject to effective regulation and discipline by a duly
constituted professional body or a public authority.
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Comment on Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law | The Center for Professional Responsibility
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Professional Conduct > Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of
Law > Comment on Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law
Comment on Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
Law Firms And Associations
Rule 5.5 Unauthorized Practice Of Law;
Multijurisdictional Practice Of Law - Comment
[1] A lawyer may practice law only in a jurisdiction in which the
lawyer is authorized to practice. A lawyer may be admitted to
practice law in a jurisdiction on a regular basis or may be
authorized by court rule or order or by law to practice for a
limited purpose or on a restricted basis. Paragraph (a) applies to
unauthorized practice of law by a lawyer, whether through the
lawyer’s direct action or by the lawyer assisting another person.
For example, a lawyer may not assist a person in practicing law in
violation of the rules governing professional conduct in that
person’s jurisdiction.
[2] The definition of the practice of law is established by law and
varies from one jurisdiction to another. Whatever the definition,
limiting the practice of law to members of the bar protects the
public against rendition of legal services by unqualified persons.
This Rule does not prohibit a lawyer from employing the services
of paraprofessionals and delegating functions to them, so long as
the lawyer supervises the delegated work and retains
responsibility for their work. See Rule 5.3.
[3] A lawyer may provide professional advice and instruction to
nonlawyers whose employment requires knowledge of the law; for
example, claims adjusters, employees of financial or commercial
institutions, social workers, accountants and persons employed in
government agencies. Lawyers also may assist independent
nonlawyers, such as paraprofessionals, who are authorized by the
law of a jurisdiction to provide particular law-related services. In
addition, a lawyer may counsel nonlawyers who wish to proceed
pro se.
[4] Other than as authorized by law or this Rule, a lawyer who is
not admitted to practice generally in this jurisdiction violates
paragraph (b)(1) if the lawyer establishes an office or other
systematic and continuous presence in this jurisdiction for the
practice of law. Presence may be systematic and continuous even
if
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not hold out to the public or otherwise represent that the lawyer
is admitted to practice law in this jurisdiction. See also Rules
7.1(a) and 7.5(b).
[5] There are occasions in which a lawyer admitted to practice in
another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction under
circumstances that do not create an unreasonable risk to the
interests of their clients, the public or the courts. Paragraph (c)
identifies four such circumstances. The fact that conduct is not so
identified does not imply that the conduct is or is not authorized.
With the exception of paragraphs (d)(1) and (d)(2), this Rule
does not authorize a U.S. or foreign lawyer to establish an office
or other systematic and continuous presence in this jurisdiction
without being admitted to practice generally here.
[6] There is no single test to determine whether a lawyer’s
services are provided on a “temporary basis” in this jurisdiction,
and may therefore be permissible under paragraph (c). Services
may be “temporary” even though the lawyer provides services in
this jurisdiction on a recurring basis, or for an extended period of
time, as when the lawyer is representing a client in a single
lengthy negotiation or litigation.
[7] Paragraphs (c) and (d) apply to lawyers who are admitted to
practice law in any United States jurisdiction, which includes the
District of Columbia and any state, territory or commonwealth of
the United States. Paragraph (d) also applies to lawyers admitted
in a foreign jurisdiction. The word “admitted” in paragraphs (c),
(d) and (e) contemplates that the lawyer is authorized to practice
in the jurisdiction in which the lawyer is admitted and excludes a
lawyer who while technically admitted is not authorized to
practice, because, for example, the lawyer is on inactive status.
[8] Paragraph (c)(1) recognizes that the interests of clients and
the public are protected if a lawyer admitted only in another
jurisdiction associates with a lawyer licensed to practice in this
jurisdiction. For this paragraph to apply, however, the lawyer
admitted to practice in this jurisdiction must actively participate in
and share responsibility for the representation of the client.
[9] Lawyers not admitted to practice generally in a jurisdiction
may be authorized by law or order of a tribunal or an
administrative agency to appear before the tribunal or agency.
This authority may be granted pursuant to formal rules governing
admission pro hac vice or pursuant to informal practice of the
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tribunal or agency. Under paragraph (c)(2), a lawyer does not
violate this Rule when the lawyer appears before a tribunal or
agency pursuant to such authority. To the extent that a court rule
or other law of this jurisdiction requires a lawyer who is not
admitted to practice in this jurisdiction to obtain admission pro
hac vice before appearing before a tribunal or administrative
agency, this Rule requires the lawyer to obtain that authority.
[10] Paragraph (c)(2) also provides that a lawyer rendering
services in this jurisdiction on a temporary basis does not violate
this Rule when the lawyer engages in conduct in anticipation of a
proceeding or hearing in a jurisdiction in which the lawyer is
authorized to practice law or in which the lawyer reasonably
expects to be admitted pro hac vice. Examples of such conduct
include meetings with the client, interviews of potential witnesses,
and the review of documents. Similarly, a lawyer admitted only in
another jurisdiction may engage in conduct temporarily in this
jurisdiction in connection with pending litigation in another
jurisdiction in which the lawyer is or reasonably expects to be
authorized to appear, including taking depositions in this
jurisdiction.
[11] When a lawyer has been or reasonably expects to be
admitted to appear before a court or administrative agency,
paragraph (c)(2) also permits conduct by lawyers who are
associated with that lawyer in the matter, but who do not expect
to appear before the court or administrative agency. For example,
subordinate lawyers may conduct research, review documents,
and attend meetings with witnesses in support of the lawyer
responsible for the litigation.
[12] Paragraph (c)(3) permits a lawyer admitted to practice law
in another jurisdiction to perform services on a temporary basis in
this jurisdiction if those services are in or reasonably related to a
pending or potential arbitration, mediation, or other alternative
dispute resolution proceeding in this or another jurisdiction, if the
services arise out of or are reasonably related to the lawyer’s
practice in a jurisdiction in which the lawyer is admitted to
practice. The lawyer, however, must obtain admission pro hac
vice in the case of a court-annexed arbitration or mediation or
otherwise if court rules or law so require.
[13] Paragraph (c)(4) permits a lawyer admitted in another
jurisdiction to provide certain legal services on a temporary basis
in this jurisdiction that arise out of or are reasonably related to
the lawyer’s practice in a jurisdiction in which the lawyer is
admitted
but are not within paragraphs (c)(2) or (c)(3). These
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services include both legal services and services that nonlawyers
may perform but that are considered the practice of law when
performed by lawyers.
[14] Paragraphs (c)(3) and (c)(4) require that the services arise
out of or be reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted. A variety of factors
evidence such a relationship. The lawyer’s client may have been
previously represented by the lawyer, or may be resident in or
have substantial contacts with the jurisdiction in which the lawyer
is admitted. The matter, although involving other jurisdictions,
may have a significant connection with that jurisdiction. In other
cases, significant aspects of the lawyer’s work might be
conducted in that jurisdiction or a significant aspect of the matter
may involve the law of that jurisdiction. The necessary
relationship might arise when the client’s activities or the legal
issues involve multiple jurisdictions, such as when the officers of
a multinational corporation survey potential business sites and
seek the services of their lawyer in assessing the relative merits
of each. In addition, the services may draw on the lawyer’s
recognized expertise developed through the regular practice of
law on behalf of clients in matters involving a particular body of
federal, nationally-uniform, foreign, or international law. Lawyers
desiring to provide pro bono legal services on a temporary basis
in a jurisdiction that has been affected by a major disaster, but in
which they are not otherwise authorized to practice law, as well
as lawyers from the affected jurisdiction who seek to practice law
temporarily in another jurisdiction, but in which they are not
otherwise authorized to practice law, should consult the [Model
Court Rule on Provision of Legal Services Following Determination
of Major Disaster].
[15] Paragraph (d) identifies two circumstances in which a lawyer
who is admitted to practice in another United States or a foreign
jurisdiction, and is not disbarred or suspended from practice in
any jurisdiction, or the equivalent thereof, may establish an office
or other systematic and continuous presence in this jurisdiction
for the practice of law. Pursuant to paragraph (c) of this Rule, a
lawyer admitted in any U.S. jurisdiction may also provide legal
services in this jurisdiction on a temporary basis. See also Model
Rule on Temporary Practice by Foreign Lawyers. Except as
provided in paragraphs (d)(1) and (d)(2), a lawyer who is
admitted to practice law in another United States or foreign
jurisdiction and who establishes an office or other systematic or
continuous presence in this jurisdiction must become admitted to
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practice law generally in this jurisdiction.
[16] Paragraph (d)(1) applies to a U.S. or foreign lawyer who is
employed by a client to provide legal services to the client or its
organizational affiliates, i.e., entities that control, are controlled
by, or are under common control with the employer. This
paragraph does not authorize the provision of personal legal
services to the employer’s officers or employees. The paragraph
applies to in-house corporate lawyers, government lawyers and
others who are employed to render legal services to the
employer. The lawyer’s ability to represent the employer outside
the jurisdiction in which the lawyer is licensed generally serves
the interests of the employer and does not create an
unreasonable risk to the client and others because the employer
is well situated to assess the lawyer’s qualifications and the
quality of the lawyer’s work. To further decrease any risk to the
client, when advising on the domestic law of a United States
jurisdiction or on the law of the United States, the foreign lawyer
authorized to practice under paragraph (d)(1) of this Rule needs
to base that advice on the advice of a lawyer licensed and
authorized by the jurisdiction to provide it.
[17] If an employed lawyer establishes an office or other
systematic presence in this jurisdiction for the purpose of
rendering legal services to the employer, the lawyer may be
subject to registration or other requirements, including
assessments for client protection funds and mandatory continuing
legal education. See Model Rule for Registration of In-House
Counsel.
[18] Paragraph (d)(2) recognizes that a U.S. or foreign lawyer
may provide legal services in a jurisdiction in which the lawyer is
not licensed when authorized to do so by federal or other law,
which includes statute, court rule, executive regulation or judicial
precedent. See, e.g., Model Rule on Practice Pending Admission.
[19] A lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) or otherwise is subject to the disciplinary
authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a lawyer who practices law in this
jurisdiction pursuant to paragraphs (c) or (d) may have to inform
the client that the lawyer is not licensed to practice law in this
jurisdiction. For example, that may be required when the
representation occurs primarily in this jurisdiction and requires
knowledge of the law of this jurisdiction. See Rule 1.4(b).
[21]
18 Paragraphs (c) and (d) do not authorize communications
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advertising legal services in this jurisdiction by lawyers who are
admitted to practice in other jurisdictions. Whether and how
lawyers may communicate the availability of their services in this
jurisdiction is governed by Rules 7.1 to 7.5.
Back to Rule | Table of Contents | Next Comment
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The views expressed herein have not been approved by the House of Delegates or the Board of Governors of
the American Bar Association and, accordingly, should not be construed as representing the policy of the
American Bar Association.
REVISED 107A
AMERICAN BAR ASSOCIATION
COMMISSION ON ETHICS 20/20
SECTION OF BUSINESS LAW
SECTION OF INTERNATIONAL LAW
TORT TRIAL & INSURANCE PRACTICE SECTION
STANDING COMMITTEE ON CLIENT PROTECTION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
STANDING COMMITTEE ON PROFESSIONAL DISCIPLINE
STANDING COMMITTEE ON PROFESSIONALISM
STANDING COMMITTEE ON SPECIALIZATION
TASK FORCE ON INTERNATIONAL TRADE IN LEGAL SERVICES
NEW YORK STATE BAR ASSOCIATION
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
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RESOLVED, That the American Bar Association amends Rule 5.5 of the ABA Model
Rules of Professional Conduct as follows (insertions underlined, deletions struck through):
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW;
MULTIJURISDICTIONAL PRACTICE OF LAW
(a) 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.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or
other systematic and continuous presence in this jurisdiction for the practice of law;
or
(2) hold out to the public or otherwise represent that the lawyer is admitted
to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice
in this jurisdiction and who actively participates in the matter;
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(2) are in or reasonably related to a pending or potential proceeding before a
tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is
assisting, is authorized by law or order to appear in such proceeding or reasonably
expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or another
jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not
services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are
reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign
jurisdiction, and not disbarred or suspended from practice in any
jurisdiction or the equivalent thereof, may provide legal services through an
office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates; and
are not services for which the forum requires pro hac vice admission; and, when
performed by a foreign lawyer and requires advice on concern the law of this or
another U.S. jurisdiction or of the United States, such advice shall be based upon the
advice of a are undertaken in consultation with a U.S. lawyer who is duly licensed
and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule
to provide in this jurisdiction.
(e) For purposes of paragraph (d), the foreign lawyer must be a member in good
standing of a recognized legal profession in a foreign jurisdiction, the members of
which are admitted to practice as lawyers or counselors at law or the equivalent,
and are subject to effective regulation and discipline by a duly constituted
professional body or a public authority.
COMMENT
[1]
A lawyer may practice law only in a jurisdiction in which the lawyer is authorized
to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may
be authorized by court rule or order or by law to practice for a limited purpose or on a restricted
basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the
lawyer’s direct action or by the lawyer assisting another person. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that
person’s jurisdiction.
[2]
The definition of the practice of law is established by law and varies from one
jurisdiction to another. Whatever the definition, limiting the practice of law to members of the
bar protects the public against rendition of legal services by unqualified persons. This Rule does
not prohibit a lawyer from employing the services of paraprofessionals and delegating functions
to them, so long as the lawyer supervises the delegated work and retains responsibility for their
work. See Rule 5.3.
[3]
A lawyer may provide professional advice and instruction to nonlawyers whose
employment requires knowledge of the law; for example, claims adjusters, employees of
financial or commercial institutions, social workers, accountants and persons employed in
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government agencies. Lawyers also may assist independent nonlawyers, such as
paraprofessionals, who are authorized by the law of a jurisdiction to provide particular lawrelated services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
[4]
Other than as authorized by law or this Rule, a lawyer who is not admitted to
practice generally in this jurisdiction violates paragraph (b)(1) if the lawyer establishes an office
or other systematic and continuous presence in this jurisdiction for the practice of law. Presence
may be systematic and continuous even if the lawyer is not physically present here. Such a
lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to
practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).
[5]
There are occasions in which a lawyer admitted to practice in another United
States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide
legal services on a temporary basis in this jurisdiction under circumstances that do not create an
unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies
four such circumstances. The fact that conduct is not so identified does not imply that the
conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule
does not authorize a U.S. or foreign lawyer to establish an office or other systematic and
continuous presence in this jurisdiction without being admitted to practice generally here.
[6]
There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c).
Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a
single lengthy negotiation or litigation.
[7]
Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any
United States jurisdiction, which includes the District of Columbia and any state, territory or
commonwealth of the United States. Paragraph (d) also applies to lawyers admitted in a foreign
jurisdiction. The word “admitted” in paragraphs (c), (d) and (e) contemplates that the lawyer is
authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer
who while technically admitted is not authorized to practice, because, for example, the lawyer is
on inactive status.
[8]
Paragraph (c)(1) recognizes that the interests of clients and the public are
protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to
practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to
practice in this jurisdiction must actively participate in and share responsibility for the
representation of the client.
[9]
Lawyers not admitted to practice generally in a jurisdiction may be authorized by
law or order of a tribunal or an administrative agency to appear before the tribunal or agency.
This authority may be granted pursuant to formal rules governing admission pro hac vice or
pursuant to informal practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does
not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such
authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is
not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing
before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.
[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction
on a temporary basis does not violate this Rule when the lawyer engages in conduct in
anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to
practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of
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such conduct include meetings with the client, interviews of potential witnesses, and the review
of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct
temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in
which the lawyer is or reasonably expects to be authorized to appear, including taking
depositions in this jurisdiction.
[11] When a lawyer has been or reasonably expects to be admitted to appear before a
court or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are
associated with that lawyer in the matter, but who do not expect to appear before the court or
administrative agency. For example, subordinate lawyers may conduct research, review
documents, and attend meetings with witnesses in support of the lawyer responsible for the
litigation.
[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction
to perform services on a temporary basis in this jurisdiction if those services are in or reasonably
related to a pending or potential arbitration, mediation, or other alternative dispute resolution
proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to
the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or
mediation or otherwise if court rules or law so require.
[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide
certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3). These services include both legal services and services that
nonlawyers may perform but that are considered the practice of law when performed by lawyers.
[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which
the lawyer is admitted. The matter, although involving other jurisdictions, may have a
significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the
law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational
corporation survey potential business sites and seek the services of their lawyer in assessing the
relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a
particular body of federal, nationally-uniform, foreign, or international law. Lawyers desiring to
provide pro bono legal services on a temporary basis in a jurisdiction that has been affected by a
major disaster, but in which they are not otherwise authorized to practice law, as well as lawyers
from the affected jurisdiction who seek to practice law temporarily in another jurisdiction, but in
which they are not otherwise authorized to practice law, should consult the [Model Court Rule on
Provision of Legal Services Following Determination of Major Disaster].
[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to
practice in another United States or a foreign jurisdiction, and is not disbarred or suspended from
practice in any jurisdiction, or the equivalent thereof, may establish an office or other systematic
and continuous presence in this jurisdiction for the practice of law. as well as Pursuant to
paragraph (c) of this Rule, a lawyer admitted in any U.S. jurisdiction may also provide legal
services in this jurisdiction on a temporary basis. See also Model Rule on Temporary Practice
by Foreign Lawyers. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is
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admitted to practice law in another United States or foreign jurisdiction and who establishes an
office or other systematic or continuous presence in this jurisdiction must become admitted to
practice law generally in this jurisdiction.
[16] Paragraph (d)(1) applies to a U.S. or foreign lawyer who is employed by a client
to provide legal services to the client or its organizational affiliates, i.e., entities that control, are
controlled by, or are under common control with the employer. This paragraph does not
authorize the provision of personal legal services to the employer’s officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are
employed to render legal services to the employer. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of
the employer and does not create an unreasonable risk to the client and others because the
employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work. To further decrease any risk to the client, when advising on the domestic law of a United
States jurisdiction or on the law of the United States, the foreign lawyer authorized to practice
under paragraph (d)(1) of this Rule needs to base that advice on the advice of a lawyer licensed
and authorized by the jurisdiction consult with a U.S. lawyer authorized to provide it that advice.
[17] If an employed lawyer establishes an office or other systematic presence in this
jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be
subject to registration or other requirements, including assessments for client protection funds
and mandatory continuing legal education. See Model Rule for Registration of In-House
Counsel.
[18] Paragraph (d)(2) recognizes that a U.S. or foreign lawyer may provide legal
services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal
or other law, which includes statute, court rule, executive regulation or judicial precedent. See,
e.g., Model Rule on Practice Pending Admission.
[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or
otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law
in this jurisdiction. For example, that may be required when the representation occurs primarily
in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).
[21] Paragraphs (c) and (d) do not authorize communications advertising legal services
in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and
how lawyers may communicate the availability of their services in this jurisdiction is governed
by Rules 7.1 to 7.5.
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AMERICAN BAR ASSOCIATION
COMMISSION ON ETHICS 20/20
STANDING COMMITTEE ON CLIENT PROTECTION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
STANDING COMMITTEE ON PROFESSIONALISM
STANDING COMMITTEE ON SPECIALIZATION
TASK FORCE ON INTERNATIONAL TRADE IN LEGAL SERVICES
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
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RESOLVED: That the American Bar Association amends the ABA Model Rule for
Registration of In-House Counsel as follows (insertions underlined, deletions struck
through):
Model Rule for Registration of In-House Counsel
GENERAL PROVISIONS:
A. A lawyer who is admitted to the practice of law in another United States jurisdiction or is
a foreign lawyer, who is employed as a lawyer and has a continuous presence in this
jurisdiction by an organization, the business of which is lawful and consists of activities
other than the practice of law or the provision of legal services, and who has a systematic
and continuous presence in this jurisdiction as permitted pursuant to Rule 5.5(d)(1) of the
Model Rules of Professional Conduct, the business of which is lawful and consists of
activities other than the practice of law or the provision of legal services, shall register as
in-house counsel within [180 days] of the commencement of employment as a lawyer or
if currently so employed then within [180 days] of the effective date of this rRule, by
submitting to the [registration authority] the following:
1) A completed application in the form prescribed by the [registration authority];
2) A fee in the amount determined by the [registration authority];
3) Documents proving admission to practice law and current good standing in all
jurisdictions, U.S. and foreign, in which the lawyer is admitted to practice law.;
If the jurisdiction is foreign and the documents are not in English, the lawyer shall
submit an English translation and satisfactory proof of the accuracy of the
translation; and
4) An affidavit from an officer, director, or general counsel of the employing entity
attesting to the lawyer’s employment by the entity and the capacity in which the
lawyer is so employed, and stating that the employment conforms to the
requirements of this rRule.
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For purposes of this Rule, a “foreign lawyer” is a member in good standing of a
recognized legal profession in a foreign jurisdiction, the members of which are admitted
to practice as lawyers or counselors at law or the equivalent and subject to effective
regulation and discipline by a duly constituted professional body or a public authority.
SCOPE OF AUTHORITY OF REGISTERED LAWYER:
B. A lawyer registered under this section Rule shall have the rights and privileges otherwise
applicable to members of the bar of this jurisdiction with the following restrictions:
1. The registered lawyer is authorized to provide legal services to the entity client or
its organizational affiliates, including entities that control, are controlled by, or are
under common control with the employer, and for employees, officers and
directors of such entities, but only on matters directly related to their work for the
entity and only to the extent consistent with Rule 1.7 of the Model Rules of
Professional Conduct [or jurisdictional equivalent provision in the jurisdiction];
and
2. The registered lawyer shall not:
a. Except as otherwise permitted by the rules of this jurisdiction, appear
before a court or any other tribunal as defined in Rule 1.0(m) of the
Model Rules of Professional Conduct [or jurisdictional equivalent],; or
b. Offer or provide legal services or advice to any person other than as
described in paragraph B.1., or hold himself or herself out as being
authorized to practice law in this jurisdiction other than as described in
paragraph B.1;. and
c. If a foreign lawyer, provide advice on the law of this or another U.S.
jurisdiction except in consultation with a U.S. lawyer authorized to
provide such advice.
PRO BONO PRACTICE:
C. Notwithstanding the provisions of paragraph B above, a lawyer registered under this
section Rule is authorized to provide pro bono legal services through an established notfor-profit bar association, pro bono program or legal services program or through such
organization(s) specifically authorized in this jurisdiction.
OBLIGATIONS:
D. A lawyer registered under this section Rule shall:
1. Pay an annual fee in the amount of $_____________;
2. Pay any annual client protection fund assessment;
23. Fulfill the continuing legal education requirements that are required of active
members of the bar in this jurisdiction;
34. Report within [___] days to the jurisdiction the following:
a. Termination of the lawyer’s employment as described in paragraph
BA.4.;
b. Whether or not public, any change in the lawyer’s license status in
another jurisdiction, whether U.S. or foreign, including by the lawyer's
resignation;
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c. Whether or not public, any disciplinary charge, finding, or sanction
concerning the lawyer by any disciplinary authority, court, or other
tribunal in any jurisdiction, U.S. or foreign.
LOCAL DISCIPLINE:
E. A registered lawyer under this section Rule shall be subject to the [jurisdiction’s Rules of
Professional Conduct], [jurisdiction’s Rules of Lawyer Disciplinary Enforcement], and
all other laws and rules governing lawyers admitted to the active practice of law in this
jurisdiction. The [jurisdiction’s disciplinary counsel] has and shall retain jurisdiction
over the registered lawyer with respect to the conduct of the lawyer in this or another
jurisdiction to the same extent as it has over lawyers generally admitted in this
jurisdiction.
AUTOMATIC TERMINATION:
F. A registered lawyer’s rights and privileges under this Rule section automatically terminate
when:
1. The lawyer’s employment terminates;
2. The lawyer is suspended or disbarred from practice in any jurisdiction or any
court or agency before which the lawyer is admitted, U.S. or foreign; or
3. The lawyer fails to maintain active status in at least one jurisdiction, U.S. or
foreign.
REINSTATEMENT:
G. A registered lawyer whose registration is terminated under paragraph F.1. above, may be
reinstated within [xx
] months of termination upon submission to the [registration
authority] of the following:
1. An application for reinstatement in a form prescribed by the [registration
authority];
2. A reinstatement fee in the amount of $_____________;
3. An affidavit from the current employing entity as prescribed in paragraph A.4.
SANCTIONS:
H. A lawyer under this rRule who fails to register shall be:
1. Subject to professional discipline in this jurisdiction;
2. Ineligible for admission on motion in this jurisdiction;
3. Referred by the [registration authority] to the this [jurisdiction’s bar admissions
authority]; and
4. Referred by the [registration authority] to the disciplinary authority of the
jurisdictions of licensure, U.S. and/or foreign.
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REPORT
Introduction and Executive Summary
The Resolution accompanying this Report proposes to amend the 2008 ABA Model Rule for
Registration of In-House Counsel so that foreign lawyers are permitted to serve as in-house
counsel, but with the added requirement that the foreign lawyer may not advise on U.S. law
except in consultation with a U.S.-licensed lawyer. This Resolution complements the
Commission’s proposal to amend Model Rule 5.5(d) of the ABA Model Rules of Professional
Conduct (Unauthorized Practice of Law; Multijurisdictional Practice), which makes a
corresponding change to that Model Rule.
These proposed amendments respond to the increasing number of multinational companies with
substantial operations in the U.S. – often recruited by states encouraging investment.1 These
companies, like U.S.-based multinational companies, want to have among their ranks of in-house
counsel lawyers from other countries in which they operate. Seven states – Arizona,
Connecticut, Delaware, Georgia, Virginia, Washington and Wisconsin – have already changed
their rules to permit companies to bring non-U.S. lawyers to the state to work for them.
Additional jurisdictions are likely to follow given the substantial growth of multinational
companies within the United States.
The Commission concluded that clients and lawyers would benefit from consistency across
jurisdictions on this issue, including requirements that such lawyers register, contribute to client
protection funds, and consult with U.S. counsel before advising their employer on issues
involving U.S. law. These lawyers would have a limited authority to practice: only for their
employer and, with respect to questions of U.S. law, only after consultation with a U.S. lawyer.
The requirement that the foreign lawyer consult with a qualified U.S. lawyer on questions of
U.S. law is consistent with that set forth in Section 3(e) of the ABA Model Rule for the
Licensing and Practice of Foreign Legal Consultants. They would be subject to discipline under
the professional conduct rules in the jurisdiction where they are employed, contribute to the
client protection fund, and comply with the jurisdiction’s continuing legal education
requirements. Their employers would have to attest to their compliance with these requirements.
The definition of who would qualify under the Rule as a foreign lawyer is substantively the same
as what is found in longstanding ABA policy, including the ABA Model Rule for the Licensing
and Practice of Foreign Legal Consultants, which state supreme courts have adopted, with no
adverse consequences.
1
See, e.g., ABA Task Force on International Trade in Legal Services, International Trade in Legal Services and
Professional Regulation: A Framework for State Bars Based on the Georgia Experience (Feb. 4, 2012), available at
http://arbitrateatlanta.org/wp-content/uploads/2011/08/FINAL-ITILS-toolkit-2-4-12.pdf (noting that “[o]ver 3600
foreign businesses from more than 60 countries have established operations in Georgia [alone]”); Texas Office of
the Governor, Foreign Investment in Texas: The Industries and Countries Leading Current Growth,
www.governor.state.tx.us/files/ecodev/Foreign_Investment.pdf (last viewed Nov. 12, 2012) (finding that more than
2,000 foreign multinationals have established locations in Texas).
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If adopted by the House of Delegates, the changes proposed in these Resolutions would not
provide foreign in-house counsel with full practice rights or admission status. The Commission
suggests only a limited practice authorization for qualified foreign lawyers.
Clients and lawyers would benefit from consistency across jurisdictions. The proposed
amendments to the Model In-House Registration Rule, with the proposed changes to Model Rule
5.5, would provide state supreme courts with a comprehensive regulatory approach that is
protective of clients while meeting the needs of global organizational clients to have the in-house
counsel of their choice work in their U.S. offices.
Relevant History
In August 2002, the ABA House of Delegates adopted recommendations proposed by the
Commission on Multijurisdictional Practice (MJP Commission) to amend Rule 5.5 of the ABA
Model Rules of Professional Conduct. These amendments enhanced opportunities for U.S.
lawyers to engage in cross-border practice by permitting temporary practice of law by U.S.
lawyers in jurisdictions where they are not licensed. Model Rule 5.5(d) authorized lawyers to
provide legal services to the lawyer’s organizational client and its affiliates even if not admitted
in the state in which the company was employing him.
The Commission on Ethics 20/20 has studied how globalization has changed the legal landscape
in the United States. At the outset of its work, it asked in its Preliminary Issues Outline whether
Model Rule 5.5(d) should be amended to include foreign lawyers within its practice
authorization for in-house counsel.2 Over the ensuing three years, the Commission took
testimony and received many comments that have informed its consideration of this issue.
The Commission’s Inbound Foreign Lawyers Working Group included active participants from
the ABA Standing Committee on Ethics and Professional Responsibility, the ABA Standing
Committee on Professional Discipline, the Section of International Law, the Real Property, Trust
and Estate Law Section, the Task Force on International Trade in Legal Services, and the Section
of Legal Education and Admissions to the Bar. These representatives contributed significantly to
the Commission’s deliberations and the Resolution that accompanies this Report. The
Commission is grateful for their contributions to its work. The Commission also received
helpful input from many elements of the bar.
During its meetings and public hearings, the Commission considered additional written
responses and oral testimony on the subject. At its October 2012 meeting, it concluded that the
2
A July 2009 Report of the Special Committee on International Issues of the ABA Section of Legal Education and
Admissions to the Bar noted that this was one of several areas where the ABA lacked policy relating to limited
practice authority for foreign lawyers in the U.S. Another area where the Special Committee noted a policy gap
related to pro hac vice admission of foreign lawyers. See ABA Section of Legal Education and Admissions to the
Bar, Report of the Special Committee on International Issues (July 15, 2009), available at
http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_r
eports_and_resolutions/june_2012_council_open_session/2012_supplemental_report_5_foreign_law_schools.authch
eckdam.pdf. This subject is addressed by the Commission in a separate Resolution to the House of Delegates.
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realities of client needs in the global legal marketplace necessitate that the ABA address more
directly limited practice authority for inbound foreign lawyers and associated regulatory
concerns.
Foreign Lawyers Should be Added to the ABA Model Rule for Registration of In-House
Counsel
The ABA has long recognized that permitting foreign lawyers limited practice authority in the
U.S. is beneficial to clients so long as appropriate client and public protections are in place (e.g.,
the ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants, originally
adopted in 1993). There is already a significant level of cross-border legal services, with U.S.
lawyers providing assistance abroad and, to a lesser extent, non-U.S. lawyers providing
assistance in the U.S. In 2011, the U.S. exported $7.4 billion in legal services while importing a
little under $1.8 billion.3
In the last decade, the number of foreign companies with U.S. offices or operations in the United
States has grown substantially – often due to active solicitation by U.S. jurisdictions – as has the
number of U.S. companies with foreign offices or operations. See the accompanying Report
supporting the Commission’s Resolution to Amend Model Rule 5.5. Those employers often
require their in-house counsel to relocate to a U.S. jurisdiction or transfer to the U.S. for a period
of time. As noted above, Arizona, Connecticut, Delaware, Georgia, Virginia, Washington and
Wisconsin already permit foreign lawyers to work as in-house counsel with no adverse
consequences that the Commission has been able to determine.
Foreign lawyers are currently practicing in-house in the U.S. with little guidance in the Model
Rules or other ABA policies. The realities of globalized legal practice means that states will
need to ensure that these lawyers (a) abide by the limitations on their ability to practice in a state;
(b) pay both bar dues and client protection fund contributions; (c) take on continuing legal
education obligations; and (d) submit to the disciplinary process of the state. Adding foreign
lawyers to the Model Rule for Registration of In-House Counsel achieves the worthwhile goal of
facilitating the ability of the courts to hold these lawyers accountable for the limited conduct for
which they are permitted to engage while in the U.S.
Including foreign lawyers in the Model In-House Registration Rule would mean these lawyers
are identifiable. Their employers have to vouch for them. They would be subject to the
professional conduct rules of the jurisdiction where they are employed, subject to sanctions if
they fail to register or do not comply with the those rules, and can be referred to appropriate
authorities in their home jurisdictions of registration and licensure in the event of a violation.4
3
See U.S. Bureau of Economic Analysis, Table G. Other Private Services Receipts, available at
http://www.bea.gov/international/xls/table_G.xls (last visited Nov. 10, 2012); U.S. Bureau of Economic Analysis,
Table H, Other Private Services Payments, available at http://www.bea.gov/international/xls/table_H.xls (last
visited Nov. 10, 2012).
4
As noted in the Commission’s Report accompanying its Resolution to amend Model Rule 5.5, the ABA Standing
Committee on Professional Discipline and the ABA Task Force on International Trade in Legal Services are
developing a model international reciprocal discipline notification protocol to facilitate the necessary information
exchange between U.S. and non-U.S. lawyer regulators.
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This proposal to include foreign lawyers in the Model Rule for Registration of In-House Counsel
also contains the added client protection (mirrored in the proposal to amend Model Rule 5.5)
that, if a matter involves the law of a U.S. jurisdiction, the foreign in-house counsel’s services
may not be undertaken except in consultation with a U.S. lawyer authorized to provide such
advice.5
For purposes of the proposed amendments, qualified foreign lawyers are defined as those who
are a member in good standing of a recognized legal profession in the lawyer’s home country,
who must be subject to effective regulation and discipline by a duly constituted professional
body or public authority. This definition has long been ABA policy and has been adopted by
U.S. state supreme courts in their rules allowing foreign lawyers to practice as Foreign Legal
Consultants.6 The Commission’s research revealed no problems that have arisen from its use.
Further the foreign lawyer’s employer would have to have determined that he or she is
competent to perform the job. The employer has a strong incentive to investigate the lawyer’s
character, fitness, and background.7
The Conference of Chief Justices has indicated its approval, in principle, of the Commission’s
approach to this issue, passing a Resolution to that effect. The Conference’s position was also
consistent with its Task Force on the Regulation of Foreign Lawyers and the International
Practice of Law, which endorsed an earlier version of the Commission’s proposal and urged
adoption of the Commission’s recommendation by the ABA House of Delegates.8 Notably, the
Conference’s Resolution related to a version of this proposal that did not yet include the new
requirement for consultation with a U.S. lawyer and was, thus, less restrictive than the proposal
the Commission has formally submitted to the House for its consideration.
The Proposed Amendments to the Model Rule for Registration of In-House Counsel
As noted above, the definition of “foreign lawyer” in Paragraph A of the Model Registration
Rule is taken from the ABA Model Rule for the Licensing and Practice of Foreign Legal
Consultants. The ABA Model Rule for Temporary Practice by Foreign Lawyers and the August
2012 ABA Model Rule on Practice Pending Admission also utilize that definition.
The Commission also recommends requiring all registered lawyers to pay bar dues as well as the
assessment for the lawyers’ fund for client protection normally paid by licensed lawyers in the
jurisdiction. This requirement is consistent with Comment [17] of Model Rule 5.5, which states
that lawyers who establish an office or continuous presence in the state “may be subject to
registration or other requirements, including assessments for client protection funds and
5
The Commission used “authorized” in conjunction with the consulting U.S. lawyer, instead of “admitted,” because,
while the consulting U.S. lawyer may not be admitted in the jurisdiction at issue, he or she may be permitted to
advise on that U.S. jurisdiction’s law pursuant to authorization under another rule.
6
For example, see the foreign legal consultant rules for states including, but not limited, to Georgia, Massachusetts,
New Mexico, North Dakota, Utah, and Virginia.
7
J. Charles Mokriski, In-House Lawyers’ Bar Status: Counsel, You’re Not in Kansas Anymore, Boston Bar J., Jan.Feb. 2008.
8
See Conference of Chief Justices, Resolution 13: Endorsing in Principle the Recommended Changes to the ABA
Model Rules Regarding Practice by Foreign Lawyers,
http://ccj.ncsc.dni.us/InternationalResolutions/resol13ABA.html (last viewed Nov. 12, 2012). In the Conference’s
Resolution, it noted that “legal transactions and disputes involving foreign law and foreign lawyers is increasing.”
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mandatory continuing legal education.” It also is consistent with Rule 1(B)(2) of the ABA
Model Rules for Lawyers’ Funds for Client Protection, stating in relevant part that “[e]very
lawyer has an obligation to the public to participate in the collective effort of the bar to
reimburse persons who have lost money or property as a result of the dishonest conduct of
another lawyer…”.9
Consistent with the ABA Model Rule for the Licensing and Practice of Foreign Legal
Consultants, the Commission also proposes adding language to the In-House Registration Rule
to require that a foreign lawyer provide with the completed application form required by the
registration authority accurate English translation(s) of any documents demonstrating his or her
admission to practice and good standing as a lawyer in any foreign jurisdictions.
The Registration Rule would continue to prohibit registered in-house lawyers from appearing in
court or other tribunal under the auspices of this registration, even if on behalf of the employer,
unless they are admitted pro hac vice or by some other exception to the local licensure law. The
amended Rule would continue to provide that lawyers registered under the Rule, whether U.S. or
foreign, bear the burden of reporting any change in licensure and employment status.
Conclusion
With the Commission on Ethics 20/20’s suggested changes to Model Rule 5.5, these
corresponding amendments to the Model Rule for Registration of In-House Counsel ensure that
foreign lawyers who practice in the United States as in-house counsel are identified and subject
to the disciplinary authority of the jurisdiction where they practice. Accordingly, the
Commission on Ethics 20/20 respectfully requests that the House of Delegates approve the
amendments to the Model Rule for Registration of In-House Counsel.
Respectfully submitted,
ABA Commission on Ethics 20/20
Jamie S. Gorelick, Co-Chair
Michael Traynor, Co-Chair
February 2013
9
See MODEL RULES FOR LAWYERS’ FUNDS FOR CLIENT PROTECTION R. 1(B)(2), available at
http://www.americanbar.org/groups/professional_responsibility/resources/client_protection/rule1.html.
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GENERAL INFORMATION FORM
Submitting Entity:
Submitted By:
Jamie S. Gorelick and Michael Traynor, Co-Chairs
1.
Summary of Resolution(s).
Inbound Foreign Lawyers: Model Rule for Registration of In-House Counsel
The Commission is proposing amendments to the 2008 ABA Model Rule for Registration
of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the U.S.,
but with the added requirements. One notable requirement is that the foreign lawyers not
advise on U.S. law except in consultation with a U.S.-licensed lawyer. The proposed
amendments would not authorize the licensing or full admission of foreign in-house
lawyers. The Commission is suggesting only a limited and necessary practice
authorization for qualified foreign in-house lawyers and a method to ensure they are
identifiable, accountable and subject to monitoring.
These proposed amendments respond to the increasing number of foreign companies with
substantial operations and offices in the U.S. as well as U.S. companies with substantial
foreign operations. These companies routinely encounter legal issues that implicate
foreign or international law and want the advice of trusted lawyers from other
jurisdictions. These companies often find that this advice can be offered most efficiently
and effectively if those lawyers relocate to a corporate office in the U.S. The
Commission learned that foreign lawyers (including foreign legal consultants) are already
engaged as in-house counsel within the U.S., but are subject to little oversight.
As stated above, the amendments would only provide a limited authority to practice for
the foreign lawyer’s employer on matters that do not involve U.S. law, unless the foreign
lawyer consults with a U.S. lawyer authorized to provide such advice. The definition of
who would qualify as a foreign lawyer is also set forth in longstanding ABA policy,
including the ABA Model Rule on Licensing and Practice by Foreign Legal Consultants,
which state supreme courts have adopted with no adverse consequences.
The proposed amendments to the Model Rule for Registration of In-House Counsel also
would ensure that foreign in-house counsel are subject to the professional conduct rules
of the jurisdiction where they are employed, contribute to the client protection fund, are
subject to sanctions if they fail to register or do not comply with the professional conduct
rules, and comply with continuing legal education requirements. Their employer would
have to attest to their compliance with these requirements, and the lawyers could be
referred to appropriate authorities in their home jurisdictions of registration and licensure
in the event of a violation.
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This Resolution complements a separate Resolution to amend Rule 5.5 of the ABA
Model Rules of Professional Conduct. The amendments to Model Rule 5.5 would
provide the authorization for this limited form of practice, and the changes to the Model
Registration Rule provide the mechanism to regulate these lawyers. The Commission
concluded that adding foreign lawyers to both Model Rule 5.5 and the Model Rule for
Registration of In-House Counsel has the benefit of ensuring that those lawyers are
identifiable, subject to monitoring, and accountable for their conduct.
The changes proposed by the Commission would provide state supreme courts with an
approach to this issue that protects clients and the public while allowing global
organizational clients to employ in-house foreign lawyers of their choice to work in their
U.S. offices. Currently, seven jurisdictions have rules permitting foreign in-house
counsel, and other jurisdictions are considering doing the same. The Commission’s
proposal would ensure greater consistency across jurisdictions on this issue.
2.
Approval by Submitting Entity.
The Commission approved the Resolutions relating to inbound foreign lawyers at its
October 25 and 26, 2012 meeting.
3.
Has this or a similar resolution been submitted to the House or Board previously?
No.
4.
What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
The adoption of this resolution would result in amendments to the ABA Model Rule on
Registration of In-House Counsel.
5.
What urgency exists which requires action at this meeting of the House?
The ABA is the national leader in developing and interpreting standards of legal ethics and
professional regulation, and therefore, has the responsibility to ensure that its Model Rules of
Professional Conduct and related regulatory policies keep pace with social change and the
evolution of law practice. By adopting the Commission’s proposal, the ABA would retain its
leadership role in setting the ethical standards for limited practice in the U.S. by foreign inhouse counsel, just as other jurisdictions have adopted or are considering related changes. In
sum, the Commission’s proposal would foster greater uniformity and ensure that jurisdictions
adopt appropriate, and carefully limited, rules on the role of foreign lawyers in the U.S.
6.
Status of Legislation. (If applicable)
N/A
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7.
Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
The Center for Professional Responsibility will publish any updates to the ABA Model Rules
of Professional Conduct and Comments, and also will publish electronically other newly
adopted policies. The Policy Implementation Committee of the Center for Professional
Responsibility has in place the procedures and infrastructure to successfully implement any
policies proposed by the Ethics 20/20 Commission that are adopted by the House of
Delegates. The Policy Implementation Committee and Ethics 20/20 Commission have been
in communication in anticipation of the implementation effort. The Policy Implementation
Committee has been responsible for the successful implementation of the recommendations
of the ABA Ethics 2000 Commission, the Commission on Multijurisdictional Practice and
the Commission to Evaluate the Model Code of Judicial Conduct.
8.
Cost to the Association. (Both direct and indirect costs)
None
9.
Disclosure of Interest. (If applicable)
10. Referrals.
From the outset, the Ethics 20/20 Commission agreed that transparency, broad outreach and
frequent opportunities for input into its work would be crucial. Over the last three and onehalf years the Commission routinely released for comment to all ABA entities (including the
Conference of Section and Division Delegates), state, local, specialty and international bar
associations, courts and the public the following: its many issues papers; draft proposals;
discussion drafts; and draft informational reports. The Commission held thirteen open
meetings where audience members participated; conducted numerous public hearings and
roundtables, domestically and abroad; created webinars and podcasts; made CLE
presentations, received and reviewed hundreds of written and oral comments from the bar
and the public. To date, the Commission has made more than 100 presentations about its
work, including presentations to the Conference of Chief Justices, the House of Delegates,
the ABA Board of Governors, the National Conference of Bar Presidents, and numerous
ABA entities, and local, state, and international bar associations.
All materials were posted on the Commission’s website. The Commission created and
maintained a listserve for interested persons to keep apprised of the Commission’s activities.
There are currently over 800 people on that list.
The Commission’s process was collaborative. It created seven substantive Working Groups
with participants from relevant ABA and outside entities. Included on these Working Groups
were representatives of the ABA Standing Committee on Ethics and Professional
Responsibility, ABA Standing Committee on Professional Discipline, ABA Standing
Committee on Client Protection, ABA Standing Committee on Delivery of Legal Services,
ABA Section of International Law, ABA Litigation Section, ABA Section of Legal
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Education and Admissions to the Bar, ABA Section of Real Property, Trust and Estate Law,
ABA Task Force on International Trade in Legal Services, ABA General Practice, Solo and
Small Firm Division, ABA Young Lawyers Division, ABA Standing Committee on
Specialization, ABA Law Practice Management Section, and the National Organization of
Bar Counsel.
11.
Contact Name and Address Information. (Prior to the meeting. Please include
name, address, telephone number and e-mail address)
Ellyn S. Rosen
Regulation Counsel
ABA Center for Professional Responsibility
321 North Clark Street, 17th floor
Chicago, IL 60654-7598
Phone: 312/988-5311
Fax: 312/988-5491
[email protected]
www.americanbar.org
12.
Contact Name and Address Information. (Who will present the report to the
House? Please include name, address, telephone number, cell phone number
and e-mail address.)
Jamie S. Gorelick, Co-Chair
WilmerHale
1875 Pennsylvania Ave., N.W.
Washington, DC 20006
Ph: (202)663-6500
Fax: (202)663-6363
[email protected]
37
Michael Traynor, Co-Chair
3131 Eton Ave.
Berkeley, CA 94705
Ph: (510)658-8839
Fax: (510)658-5162
[email protected]
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
Inbound Foreign Lawyers: Model Rule for Registration of In-House Counsel
The Commission is proposing amendments to the 2008 ABA Model Rule for Registration
of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the U.S.,
but with the added requirements. One notable requirement is that the foreign lawyers not
advise on U.S. law except in consultation with a U.S.-licensed lawyer. The proposed
amendments would not authorize the licensing or full admission of foreign in-house
lawyers. The Commission is suggesting only a limited and necessary practice
authorization for qualified foreign in-house lawyers and a method to ensure they are
identifiable, accountable and subject to monitoring.
These proposed amendments respond to the increasing number of foreign companies with
substantial operations and offices in the U.S. as well as U.S. companies with substantial
foreign operations. These companies routinely encounter legal issues that implicate
foreign or international law and want the advice of trusted lawyers from other
jurisdictions. These companies often find that this advice can be offered most efficiently
and effectively if those lawyers relocate to a corporate office in the U.S. The
Commission learned that foreign lawyers (including foreign legal consultants) are already
engaged as in-house counsel within the U.S., but are subject to little oversight.
As stated above, the amendments would only provide a limited authority to practice for
the foreign lawyer’s employer on matters that do not involve U.S. law, unless the foreign
lawyer consults with a U.S. lawyer authorized to provide such advice. The definition of
who would qualify as a foreign lawyer is also set forth in longstanding ABA policy,
including the ABA Model Rule on Licensing and Practice by Foreign Legal Consultants,
which state supreme courts have adopted with no adverse consequences.
The proposed amendments to the Model Rule for Registration of In-House Counsel also
would ensure that foreign in-house counsel are subject to the professional conduct rules
of the jurisdiction where they are employed, contribute to the client protection fund, are
subject to sanctions if they fail to register or do not comply with the professional conduct
rules, and comply with continuing legal education requirements. Their employer would
have to attest to their compliance with these requirements, and the lawyers could be
referred to appropriate authorities in their home jurisdictions of registration and licensure
in the event of a violation.
This Resolution complements a separate Resolution to amend Rule 5.5 of the ABA
Model Rules of Professional Conduct. The amendments to Model Rule 5.5 would
provide the authorization for this limited form of practice, and the changes to the Model
Registration Rule provide the mechanism to regulate these lawyers. The Commission
concluded that adding foreign lawyers to both Model Rule 5.5 and the Model Rule for
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Registration of In-House Counsel has the benefit of ensuring that those lawyers are
identifiable, subject to monitoring, and accountable for their conduct.
The changes proposed by the Commission would provide state supreme courts with an
approach to this issue that protects clients and the public while allowing global
organizational clients to employ in-house foreign lawyers of their choice to work in their
U.S. offices. Currently, seven jurisdictions have rules permitting foreign in-house
counsel, and other jurisdictions are considering doing the same. The Commission’s
proposal would ensure greater consistency across jurisdictions on this issue.
2.
Summary of the Issue that the Resolution Addresses
As the national leader in developing and interpreting standards of legal ethics and
professional regulation, the ABA has the responsibility to ensure that its Model Rules of
Professional Conduct and regulatory policies keep pace with social change and the
evolution of law practice. In furtherance of this, in August 2009, then-ABA President
Carolyn B. Lamm created the Commission on Ethics 20/20 to study the ethical and
regulatory implications of globalization and technology on the legal profession and
propose necessary amendments to and/or new ABA policies.
Globalization continues to transform the legal marketplace, with more clients confronting
legal problems that cross jurisdictional lines, more lawyers needing to respond to those
client needs by crossing borders (including virtually) and relocating to new jurisdictions.
The Commission on Ethics 20/20 reviewed the regulatory framework adopted by the
House of Delegates in 2002 at the recommendation of the Commission on
Multijurisdictional Practice. Unsurprisingly, in light of the accelerated pace of change
and the growing proportion of legal work that involves more than one U.S. or foreign
jurisdiction, the Commission found that ethical issues are arising with greater frequency.
Courts, lawyers, clients and the public need enhanced guidance to address these issues.
These proposed amendments to the Model Rule for Registration of In-House Counsel
respond to the increasing number of foreign companies with substantial operations and
offices in the U.S. as well as U.S. companies with substantial foreign operations. These
companies routinely encounter legal issues that implicate foreign or international law and
want the advice of trusted lawyers from other jurisdictions. These companies often find
that this advice can be offered most efficiently and effectively if those lawyers relocate to
a corporate office in the U.S. The Commission learned that foreign lawyers (including
foreign legal consultants) are already engaged as in-house counsel within the U.S., but
are subject to little oversight.
The Commission’s proposal is consistent with following guiding principles that then
ABA President Lamm directed the Commission to follow: protecting the public;
preserving the core professional values of the American legal profession; and maintaining
a strong, independent, and self-regulated profession.
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3.
Please Explain How the Proposed Policy Position will address the issue
The proposed resolution of the Commission on Ethics 20/20, if adopted, will provide
necessary guidance to the profession that will allow lawyers to meet the ethical and
regulatory challenges posed by globalization, as well as take advantage of the
opportunities for the ethical delivery of legal services. The Commission’s proposal will
allow entity clients to meet their needs with counsel of their choice. The separately filed
proposed amendments to Model Rule 5.5 provide the authorization for this carefully
limited form of practice by foreign in-house counsel, and the changes to the Model
Registration Rule provide the mechanism to regulate these lawyers. The Commission’s
proposal has the benefit of ensuring that those lawyers are identifiable, subject to
monitoring, and accountable for their conduct. The proposal are also appropriately
limiting because they only provide a limited authority to practice for the foreign lawyer’s
employer on matters that do not involve U.S. law, unless the foreign lawyer consults with
a U.S. lawyer authorized to provide such advice. The proposed amendments to the
Model Registration Rule would not authorize the licensing or full admission of foreign
in-house lawyers.
4.
Summary of Minority Views
From the outset, the Commission on Ethics 20/20 committed to and implemented a
process that was transparent, open, and provided broad outreach and frequent
opportunities for input into its work. Inherent in any undertaking of this scope and
complexity is the recognition that there will be disagreements about the approach to
issues as well as the substance of proposals. That said, with the exception of concerns by
only some ABA members the Commission was not aware of any organized or formal
minority views or opposition at the time the Resolution and Report were filed.
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October 12, 2012
321 North Clark Street
Chicago, IL 60654-7598
Sent by email to [email protected]
Re:
Association of Corporate Counsel comments on proposed amendments to ABA
Model Rules concerning foreign in-house lawyers who practice in the U.S.
To the ABA Commission on Ethics 20/20:
On behalf of the Association of Corporate Counsel, we are writing to comment on the
amendments that the 20/20 Commission proposed on September 4 regarding foreign
lawyers who practice in-house in the United States. (Specifically, the proposals concern
ABA Model Rule of Professional Conduct 5.5, the ABA Model Rule for Registration of
In-House Counsel, and the ABA Model Rule on Pro Hac Vice Admission.)
I.
INTRODUCTION
ACC strongly supports the underlying goals of the September 4 proposals. These include
removing obstacles to in-house lawyers who move between jurisdictions, and recognizing
that in-house legal departments must have broad flexibility to hire the lawyers who best
suit their needs. At the same time, we encourage the 20/20 Commission to take
additional steps toward achieving these goals. The current proposals impose too many
burdens on companies and their in-house lawyers. The most prominent examples include
rules that require foreign lawyers to work with U.S.-barred lawyers, rules that require
these lawyers to pay into client protection funds, and pro hac vice rules that will likely
not be useful. Despite the Commission’s good intentions, these and other proposals
would needlessly hem in corporate legal departments and the foreign lawyers who work
there.
II.
BACKGROUND
A.
About ACC: ACC is a global bar association that promotes the common
professional and business interests of in-house counsel, with over 30,000 members
employed by over 10,000 organizations in more than 75 countries. For years, ACC has
advocated removing obstacles that prevent companies and organizations from hiring and
using lawyers as their needs require. As part of that mission, ACC has closely followed
the 20/20 Commission’s work from its creation.
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B.
ACC’s Previous Comment Letter: In 2010, ACC wrote to the Commission’s
Working Group on Inbound Foreign Lawyers. That letter called for the Commission to
adopt as a “bedrock principle” a system modeled on driver’s licenses. ACC 2010 letter at
2 (attached). Such a system would allow a lawyer “who is licensed and in good standing
in his or her home jurisdiction” to “temporarily practice in other jurisdictions by simply
agreeing to submit to regulation by the appropriate authorities and be subject to
applicable rules.” Id.
ACC continues to support a driver’s license system. It remains the best way to ensure
that companies retain maximum flexibility to employ in-house lawyers, foreign or
domestic, while also ensuring that lawyers comply with all applicable professional
standards. Given the pending proposals, the Commission has apparently decided not to
implement that model quite yet. So we limit our comments in the remainder of this letter
to the specific amendments that the 20/20 Commission has proposed. Even so, we retain
our hope that state bars will eventually adopt the broader changes that ACC proposed in
2010.
C.
Approach to Current Proposals: Viewed generally, the proposed amendments
to all three of the model rules suffer from a common defect – they make it too difficult
for U.S. companies to make the most of the in-house foreign lawyers they hire. This
common problem seems to stem from key differences between the clients of in-house
legal departments and law firms that the proposed rules do not reflect.
Anyone from the public might hire a lawyer at a firm. Therefore, anyone might get hurt
if a lawyer at a firm makes a mistake or has a conflict of interest. That’s not true with the
clients of in-house legal departments. When a company hires in-house lawyers, except
for pro bono matters, those lawyers will represent only that company and its affiliates. So
if they cause a problem for the company, they expect that the company itself will punish
them, or even fire them. The need to guard against malpractice, in the sense of protecting
a vulnerable and unsuspecting client from an incompetent or malicious lawyer, is
therefore much reduced in the in-house context.
That’s because companies that hire in-house lawyers are sophisticated legal customers,
with extensive experience in the legal marketplace, negotiating rooms, and courtrooms.
They can calibrate the legal risk that they are willing to bear, even when that risk might
be different than what law firms are willing to bear when representing outside clients. In
short, companies that hire in-house lawyers are fully competent to make their own
decisions about how to staff their legal needs.
In theory, the 20/20 Commission understands this point. According to the Commission’s
report on the proposed registration rule, “[t]he quality of these foreign-in house lawyers
has also been subject to careful scrutiny” because “their employers have determined that
their credentials are worthy of employment.” Registration Report at 4. And “[b]ecause
these lawyers work under a limited scope of practice and only for their client/employer,
risk to the public associated with these proposed amendments is de minimus.” Id. See
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also Comment 16 to Model Rule 5.5, at 5 (“the employer is well situated to assess the
lawyer’s qualifications and the quality of the lawyer’s work.”).
But even after stating these principles so well, the Commission does not follow through.
Instead of allowing companies to hire lawyers to do whatever work is necessary, subject
only to the local professional conduct rules, the proposed amendments would impose a
string of new unnecessary requirements. These requirements are especially troublesome
because the Commission acknowledges that there is no evidence indicating that foreign
in-house lawyers currently authorized to work in the U.S. have caused any trouble for
their clients, for other lawyers, or for the public. ACC has not heard of any such
instances, and to our knowledge neither have any state bars that permit foreign in-house
lawyers to practice in the United States. We would expect that amendments as restrictive
as the ones that the Commission has proposed would rest on a foundation of solid
evidence. But the Commission has presented none here.
III.
PROBLEMATIC PROPOSALS
The most prominent unnecessary restrictions are:
A.
Consulting with U.S.-licensed attorneys: This requirement appears in the
registration rule at (B)(2)(c), and also in the proposed amendment to Rule 5.5, at
5.5(d)(1). There is no need for it. It is a truism that companies hire lawyers to do the job
the companies hire them to do. If the company determines that the lawyer should advise
on foreign law, or on U.S. law, that should be the company’s choice. Requiring the
company to have its foreign lawyer team up with a U.S. lawyer wastes resources, and
fails to appreciate the dynamic of in-house legal departments, which we describe above.
The consultation requirement also ignores that foreign lawyers who register will need to
agree to abide with all governing local practice and professional conduct rules. Those
rules already include a requirement that any lawyer, foreign or not, have competence in
the area of law that she or he will practice in. ABA’s own Model Rule 1.1 has the title
“Competence,” and states that lawyers must have “the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.” There is no
need to impose any further requirement on any lawyer practicing in the United States.
We also note what appears to be a telling typographic error related to the consultation
requirement. The proposal to modify Section 5.5(d)(1) should probably state “U.S.
jurisdiction” instead of just “jurisdiction.” Otherwise, the proposed change would not
even allow a foreign lawyer to advise his or her client about the law in that lawyer’s
home nation, which is of course a prime reason that the Commission recommends
registration for foreign lawyers in the first place. At the same time, this apparent typo
throws a spotlight on the artificial distinction that the Commission’s proposed
amendments would create between foreign- and domestically-licensed lawyers, and
reinforces the need for competence as the only meaningful standard. One plausible
reading of the Commission’s proposals is that foreign lawyers are competent to advise on
any foreign or international law, even in areas where they have no experience or
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expertise. Of course, the competence requirement of Rule 1.1 would prevent that from
happening. But the framing of the proposal indicates that the Commission sees a
fundamental difference between foreign- and domestically-licensed lawyers, where none
exists. The only relevant standard is competence. Therefore, we urge the Commission to
revise the rules to further highlight the importance of competence, and to delete the other
proposed restrictions as meaningless.
B.
Payment of fees to client-protection fund: The proposals recommend that
foreign in-house lawyers who practice in the U.S. should pay into any applicable client
protection funds. See Proposed Registration Rule at Section (D); Proposed Amendment
to Rule 5.5(d), cmt. 17; Pro Hac Vice Proposal at Section I(E)(4). This requirement
makes no sense in the in-house context. The only client who might be hurt is the
company or organization that hires the lawyer. And, in most situations, it’s likely that the
company itself will pay the fee. As is discussed above, the employer/client already has a
quite effective way to address incompetent or unethical conduct by its lawyers – it can
sanction or fire them directly. As a result, forcing the company or its in-house lawyers to
pay into the fund becomes an unnecessary insurance payment. We strongly recommend
that the Commission remove these requirements for all in-house lawyers, foreign or not.
C.
Pro hac vice: We have several concerns about the pro hac vice proposals.
(1)
Overall, the requirements are too arbitrary to assist foreign lawyers. We
appreciate the Commission has taken a much-needed step by suggesting that foreign
lawyers can qualify for pro hac vice admission at all. But the implementation that the
Commission suggests creates many layers of requirements. Then, even after passing
through them, lawyers would still face a possible red light from the judge. Judges may
indeed hesitate to open the doors of their courtrooms to foreign lawyers. This hesitancy
might stem from heartfelt doubt about changing longstanding customs. Or it might stem
from other reasons. No matter the cause, we suspect that foreign lawyers – facing a long
and maybe expensive process plus a possible judicial veto – will simply throw up their
hands and advise their clients hire locally-licenses lawyers instead.
As an alternative, we recommend that the Commission switch the burden, so that any
lawyer who satisfies the substantive pro hac vice requirements “shall” be admitted on a
pro hac basis. This is in fact what the model Pro Hac Vice Rule already states. At
Section I(D)(3), it provides that “[a]n application ordinarily should be granted.” We urge
the Commission to repeat this language in the new proposed Section III, to make clear
that there is no distinction between domestic and foreign lawyers in this regard. This
solution would maintain the many layers of protection in the current rule. It would also
maintain pro hac vice admission as a real option for foreign lawyers.
(2)
We also request that, for foreign in-house lawyers who seek pro hac vice
admission, the Commission modify the requirement that the lawyer be in good standing
in the bar in her or his home nation. See Pro Hac Vice Proposal at Section III(A), and
Appendix Items 3 & 5. In some countries – most prominently, France – lawyers who
practice in-house must surrender membership in their local bar. Yet it would make no
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sense to prohibit these lawyers from practicing on a pro hac vice basis in the United
States simply because of the peculiarities of their home bar associations. The
Commission should therefore consider adding a clause that accepts pro hac applications
from foreign lawyers in this situation.
(3)
Finally, we recommend that the Commission limit the pro hac vice admission
process to actual state courts. In state tribunals other than courts, we recommend that any
foreign lawyer who has registered with the jurisdiction have the right to represent her or
his employer without bearing the burdens of the pro hac process. There is less risk to the
public in tribunals than in courts, and there are usually less formal practice rules.
D.
Pro bono practice: We commend the Commission for recommending that
foreign in-house lawyers practicing in the U.S. have the right to represent U.S. clients on
a pro bono basis. ACC has long focused on opening up opportunities for all in-house
lawyers to provide pro bono legal services to clients in need, no matter the jurisdiction of
the lawyers’ law license.
We also understand that bar associations and the public need to ensure that lawyers meet
all governing standards when foreign lawyers represent clients other than their
employers. Therefore, we do not object to the requirement that foreign-licensed in-house
lawyers work with established legal aid groups or programs. See Registration Rule
Proposal at Section C. However, we strongly recommend that the Commission clarify
that the list of approved pro bono programs includes any programs that the in-house legal
departments themselves sponsor, whether individually, collectively through associations
such as ACC Chapters, or with partners, such as law firms or organizations like
Corporate Pro Bono (which ACC co-sponsors). In recent years many corporate law
departments and ACC Chapters have created or expanded their own pro bono programs,
and the Commission should allow foreign lawyers to participate in them.
IV.
BENEFITS OF PROPOSALS
Despite our concerns above, ACC also wishes to commend the Commission for
recognizing the legitimate needs that U.S. corporations, companies, and organizations
have to employ in-house foreign lawyers.
*****
We thank the Commission and its members for recognizing that, in today’s global
economy, companies in the United States need to employ lawyers with foreign law
licenses. Specifically, we appreciate that the Commission’s proposals would not require
these lawyers to take local bar exams. At the same time, the proposed changes simply
will not give companies and organizations the flexibility that they and their lawyers need.
We hope that our discussion above offers reasonable alternatives to some of your
proposals.
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Sincerely yours,
Amar D. Sarwal
Vice President and Chief Legal Strategist
[email protected]
Evan P. Schultz
Senior Counsel and Director of Advocacy
Attachment
cc:
Jamie S. Gorelick, Esq., Co-Chair ([email protected])
Michael Traynor, Esq., Co-Chair ([email protected])
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Washington, DC 20036-5425
Tel 202.293.4103
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www.acc.com
Submitted July, 2010
Response of the Association of Corporate Counsel
to the Request for Comment on the Proposals of ABA Commission on Ethics 20/20
Working Group – Inbound Foreign Lawyers
THE GUIDING PRINCIPLE – FREEDOM OF MOVEMENT FOR ALL LAWYERS
ACROSS STATE BOUNDARIES
I. EXECUTIVE SUMMARY
In this paper we pose for discussion the following propositions:
1. FREEDOM OF MOVEMENT: Any lawyer (broadly defined) should be free to
practice across jurisdictional boundaries on behalf of a client and in the course of the lawyer’s
practice, and to relocate and apply for simple recognition in a new jurisdiction based on
admission and good standing in their home and other practice jurisdictions.
2. DEFINING WHO IS AUTHORIZED TO PRACTICE AS A LAWYER: Any
individual who has been admitted as a lawyer in a jurisdiction recognized as one that
appropriately regulates the legal profession – whether foreign or domestic – should be entitled to
operate under the first guiding principle as to freedom of movement.
3. CREATING A UNIFORM REGULATORY STRUCTURE TO ASSURE
PROFESSIONAL PRACTICES AND METE OUT DISCIPLINE WHEN NEEDED: A simple and
uniform set of regulations is needed to facilitate the practice of law across jurisdictional lines,
perhaps overseen by a single clearinghouse/agency invested with determining who is authorized
to practice as a lawyer across borders.
II. BACKGROUND
The Association of Corporate Counsel (“ACC”) commends the extensive, thoughtful work
that the ABA Commission on Ethics 20/20 Working Group – Inbound Foreign Lawyers
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(“WGIFL”) has done to date. We also wholeheartedly support what appears to be the underlying
core concerns of the WGIFL, that the rules governing the movement of lawyers between
jurisdictions need to be modified to include foreign as well as US admitted lawyers, that
whatever rules are adopted have as their primary objective the improvement of service to clients
(including improved access to professional services), and that regulation should be carefully
tailored so as to allow the US to compete in the global marketplace for legal services.
In this Response we address what we believe to be the principles that need to be embodied
in rules that may ultimately be proposed for adoption. We hope that, as the discussion continues
on proposals propounded by the WGIFL, we will have a further opportunity to comment on or
even propose specific rules crafted to implement these principles. But at this stage, since the
issues have not yet been joined, we feel it most appropriate to lay out principles and opinions that
we hope can help shape the discussion.
Core Recommendations: As indicated in the Executive Summary, ACC encourages the
WGIFL to adopt as its bedrock principle a rule whereby a lawyer – however defined – who is
licensed and in good standing in his or her home jurisdiction, may practice temporarily in other
jurisdictions by simply agreeing to submit to regulation by appropriate authorities and be subject
to applicable rules, without requiring local admission. This concept is often described as a
“driver’s license” rule. Similarly, an equally simple and uniform rule is required to enable
lawyers to relocate on a permanent basis and waive into a US jurisdiction based on their existing
credentials (and not a full bar examination process).
III. THE NEED FOR A SINGLE UNIFORM REGULATORY SYSTEM
It is vitally important to regulate lawyer movement under a uniform set of regulations.
Accordingly, whatever rules are to be promulgated should apply to all who fit within a broad
definition of who is a “lawyer” (which is discussed separately below). No distinction should be
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made, for instance, between lawyers admitted in the US who are private practitioners and those
who employed as in-house counsel, or between US lawyers and foreign lawyers. If we take as a
given that the purpose of regulating the bar is the protection of the public, then that objective is
best accomplished by insuring that those who hold themselves out to practice as lawyers are
subject to and governed by predictable and strong standards of professionalism and competence.
Local admission rules based largely on jurisdictional origin or educational dissimilarities have a
stronger purpose in sustaining anti-competitive structures than in promoting protection of the
public or lawyer competence or client choice in counsel, and should be swept away.
Unless and until a way can be found to attain uniformity in practice requirements and
admission, the United States and our legal profession will be at a growing disadvantage in the
global marketplace, and we will not be serving the needs of clients who increasingly operate in a
cross-border or global fashion.
IV. WHO IS A LAWYER?
If we seek uniform admission and recognition standards, then we necessarily need a
definition for “who is a lawyer” that is simple, fair, and can be uniformly applied. A definition
that can be applied to lawyers who are admitted in foreign (non-US) jurisdictions – the specific
problem that the WGIFL is seeking to address in its Proposal – is subordinate to the larger,
required conversation about defining who is a lawyer generally.
This issue is unnecessarily complicated by the traditional manner in which lawyer
admission and movement within the United States is restricted (even as those same practice
proscriptions are widely ignored by both sophisticated lawyers and their clients who practice
across borders both virtually and in reality every day). The traditional regulatory model still in
place in the states rests on three criteria for admission: 1) qualifying legal education, 2) the
passage of a local examination, and 3) passing a local character and fitness review. In turn, the
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restrictive impact of these regulations is reinforced – and enforced – through the application by
states of the laws relating to the unauthorized practice of law (“UPL”), which are themselves also
different from state to state.
In ACC’s view, according weight to a person’s formal legal education at a locally
accredited institution or passage of a local bar examination is not an appropriate substitute for the
more meaningful assessment of their professionalism and actual competence to provide legal
services to clients. An emphasis on whether a person attended a specific number of
defined/required courses, or sat in classrooms for a defined period of time, or took requisite tests
on which they scored sufficient grades (all suggesting that completing “academic” class work is
a better indicator of fitness to practice than the person’s actual experience representing clients)
impedes admission and recognition of well qualified lawyers (both in the US and outside our
borders) simply on the basis of geographic origin. Such restrictions have little to do with the
protection of the public and even less to do with assuring competent and professional client
service.
ACC suggests the question to be asked in determining competency to practice should be
simple and complete – has the person been admitted to practice as a lawyer by a properly
constituted regulator in a jurisdiction which regulates the practice of law in a manner consistent
with professional regulation as it exists in each of the United States, and is that person in good
standing?
Such a standard has an important additional advantage in that it facilitates the negotiation
of similarly simple reciprocal rights for US lawyers entering other foreign jurisdictions to serve
their client’s multinational legal needs. Establishing a single standard that rests on good standing
to practice in a jurisdiction that appropriately regulates lawyers can be easily understood and
replicated, creating the necessary basis for comity. This removes the barrier to the negotiation of
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reciprocal rights not only for inbound foreign lawyers, but also for outbound US attorneys who
are “products” of the traditional US state-based licensing rather than a national standard of
admission. Other countries cannot negotiate admission rights with individual US states, but
could accept a nationally recognized and uniform standard that allows for freedom of movement
by both US and foreign counsel crossing national and state borders.
In the same way, uniform adoption throughout the United States of a “driver’s license”
model would – appropriately – make the UPL question irrelevant. The essence of the “driver’s
license” model suggests that if you have a license and a good driving record, you may drive
temporarily in another jurisdiction by subjecting yourself to abide by that jurisdiction’s rules and
laws. If a driver/lawyer moves permanently to another jurisdiction which is in comity with the
licensing pact, then the license is largely transferrable based on a clean record and good standing,
and without suggesting that the driver needs to be re-tested again. The presumption is that a
good driver, like a good lawyer, develops the requisite skill to not only perform the essential
tasks needed to practice the craft of driving elsewhere, but can learn and live by the local rules of
the road.
Thus, under a driver’s license regime, any individual who is a lawyer (as defined above),
wherever admitted (whether within or outside the United States), would be free to move across
state boundaries on behalf of their clients and in the course of their practices. This approach
should apply to everyone falling within the definition of lawyer, whether US- or foreign-trained
and licensed. In sum, ACC urges the WGIFL to propose and support regulation that recognizes
that any individual who has been admitted as a lawyer in a jurisdiction recognized as one that
appropriately regulates the legal profession – whether foreign or domestic – should be entitled
to operate under the guiding principle of freedom of movement.
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V. ACTING TO PRESERVE BUT UPDATE STATE-BASED REGULATION
Acceptance of the guiding principle of freedom of movement, and of a simplified
definition of “who is a lawyer,” does not require us to abandon state-based original admission
systems or state-based regulation and enforcement standards. But when examining greater
comity between the states (through a driver’s license-type pact), the Commission will need to
consider at least two closely linked questions that are critical to lawyer mobility: first, whether
we should assume that all lawyers (as broadly defined above) are equally entitled to move among
jurisdictions in the US; and, second, who should regulate moving lawyers and how?
Some may suggest that there should be limitations defining which lawyers are or are not
entitled to rely upon the guiding principle of freedom of movement. ACC suggests that two of
these limitations may merit consideration: one is experience and the other is language skill.
While not requirements we would seek to impose across the board, we could envisage a
legitimate addendum to the definition of who is a lawyer to require that a lawyer must practice
for a period of time to establish a record of good standing and proven capability before that
lawyer should be empowered to take full advantage of the right to move among jurisdictions. We
are also aware that in some kinds of practice, a lawyer entering a jurisdiction where his or her
language skills (in the host jurisdiction’s predominant language) are limited could present
problems for clients who may share the lawyer’s language, but not understand the limitations
that the lawyer will encounter in representing the client’s interests before local courts, regulators,
or in other situations where the lawyer must navigate the local legal system.
The question of who should authorize and regulate the movement of lawyers between
jurisdictions will likely create the need to discuss whether lawyers should be required to register
their presence in a host jurisdiction or their general intention to cross multiple borders. In our
view, registering in each host jurisdiction in the US creates unnecessary administrative burdens
for both the bars and lawyers, doing little or nothing to improve the protection of the public, and
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much to frustrate the multijurisdictional practice that is an integral part of almost every lawyer’s
activities in the modern world. Redundant, document-heavy applications are of no utility in
determining the competence or professionalism of lawyers who are serving clients across
jurisdictional borders.
Continuing to focus on jurisdiction-by-jurisdiction registration will encourage
bureaucratic and prohibitively expensive documentation and fee requirements. As local
regulators are unevenly equipped and often poorly staffed/funded to evaluate credentials (even
where fees attach to registration procedures), local registrars may be left to do nothing more than
to assure that relevant “boxes are checked,” especially for applications from lawyers not licensed
in the US. Thus, in our view, registration requirements will likely do little or nothing to improve
quality or assure meaningful evaluation of lawyers entering any particular jurisdiction, or
moving among multiple jurisdictions.
No one can deny that lawyers cross jurisdictional lines every day (whether in cars, on
planes, or over the phone lines and internet). The vast majority of lawyers in corporate practice
and a large and increasing number of lawyers engaged in individual representations commonly
engage in cross-border practices as a standard part of their work, whether it entails child custody
arrangements, criminal extradition, or a complex merger or multistate litigation. Instead of
investing further in a system that already creates almost universal disregard of current state-bystate restrictions on practice, bars interested in protecting their local populations from bad
lawyering should encourage compliance with a rule that focuses not on trying to stem (or
document) the irreversible and overwhelming direction of the tide, but rather clearly establishes
their full authority to prosecute any lawyer from any place else who actually does harm in their
local jurisdictions. Legitimate concerns regarding the protection of the public within any
individual state will, in our view, be much better addressed by requiring that all lawyers who
avail themselves of the privilege of crossing jurisdictional lines for purposes of legal practice be
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automatically subject to the rules and disciplinary authority of the jurisdiction in which lawyers
are working.
Accordingly, we suggest that the WGIFL consider proposing a single, simple uniform set
of standards to authorize practice and regulation across jurisdictional lines, reserving local
protection of the public to the states, but facilitating comity between states for the movement of
properly credentialed lawyers (both US and foreign). Ideally, the states would see the benefit of
vesting the administration of such regulations in a single national clearinghouse or agency, the
role of which is to determine who is a properly credentialed lawyer and to facilitate their
“registration” in the multiple US jurisdictions into which their work might take them, relieving
states of this burden and assuring that all lawyers practicing in their jurisdictions are authorized
(and regulated) as they do so.
VI. SUMMARY
ACC encourages the WGIFL to address the broad issues raised in this paper before
drafting rules – we know it will be tempting to respond by stating that what we propose is
beyond the charter of the WGIFL to consider. But someone must and we hope the Commission
will be interested in leading this important discussion. We also recognize that many states may
find these proposals threatening, even though what we propose is a solution that allows us to
preserve a traditional state-based licensing system in a multijurisdictional practice world.
Our purpose is to place the Proposals on which we have been asked to comment into their
proper – and wider – context as a prelude to engaging in more detailed discussion that requires
the Commission to balance many perspectives. One thing is clear to us: we need comprehensive
solutions to the challenges we face as a profession: a series of modest proposals to amend
traditional admission rules will not protect clients or help lawyers navigate legal and global
practice challenges in the modern era.
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July 20, 2012
The Honorable Michael G. Heavican
Chief Justice
Nebraska Supreme Court
Room 2214, State Capitol
Lincoln, NE 68509
Chair
Professionalism and Competence of the Bar Committee
of the Conference of Chief Justices
c/o Association Management
300 Newport Avenue
Williamsburg, VA 23185-4147
Re:
Association of Corporate Counsel’s support for resolution to reduce
obstacles that prevent in-house lawyers from offering pro bono services
Dear Chief Justice Heavican:
The Association of Corporate Counsel is pleased to present this letter supporting the
proposed resolution to encourage states to expand opportunities for many in-house
lawyers to meet pro bono needs.
In-house lawyers have the sophistication, the experience, and the capacity to help people
who need legal services but cannot afford to pay. Unfortunately, many state practice
rules often prevent in-house lawyers from offering as much help as they can give. A
resolution now pending before the Conference of Chief Justices would encourage
conference members to help eliminate the obstacles to in-house pro bono work. On
behalf of the Association of Corporate Counsel, we are writing to ask you and the
Conference to support that resolution.
ACC is a global bar association that promotes the common professional and business
interests of in-house counsel, with over 30,000 members employed by over 10,000
organizations. For years, ACC has strongly supported efforts across the country to
remove obstacles that often make it difficult for the country’s experienced and
sophisticated in-house lawyers to donate their legal expertise to people who need their
help.
Practice rules in most states prevent in-house lawyers from fully engaging in pro bono.
State practice rules usually allow in-house lawyers with out-of-state law licenses to work
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for their employer. But the practice rules of many states do not allow those same lawyers
to fully help pro bono clients.
This makes no sense. In-house attorneys are smart, experienced, responsible, and
zealous. They meet and exceed the highest professional legal standards. That’s why
their employers hire them. The pending resolution recognizes that in-house lawyers will
serve pro bono clients with the same excellence that they serve their employers.
And there’s no question that people need their help. Put plainly, most people living in
tough financial conditions don’t get help from lawyers when they need it. According to
the Legal Services Corporation, fewer than “one in five low-income persons get the legal
assistance they need” from pro bono or legal aid lawyers. Legal Services Corporation,
Documenting the Justice Gap In America: The Current Unmet Civil Legal Needs of LowIncome Americans, An Updated Report of the Legal Services Corporation (2009).
In-house legal departments have already made strong contributions to meeting this need.
Hundreds of in-house legal departments have formalized efforts to provide pro bono legal
services. According to Corporate Pro Bono, a partnership of the Pro Bono Institute and
ACC, many of the Fortune 500 companies and a majority of Fortune 100 companies have
either set up or are moving to set up formal pro bono programs. They want to do even
more, but state practice rules often stand in their way.
Nearly half of the states have taken no steps at all to accommodate the growing in-house
surge of volunteer work. And even in the states that have changed their rules, most still
impose some burdensome restrictions on in-house lawyers who want to practice pro
bono. These restrictions – such as requirements to work only under the supervision of instate lawyers, or with registered legal services providers – drain resources that otherwise
would be available to help people who need legal services.
The pending resolution recognizes that lawyers who help their corporations and
organizations with difficult problems are equally qualified to help people in legal distress
who cannot pay. By helping to make a simple change to more state practice rules, the
Conference of Chief Justices will help countless people in need.
Sincerely yours,
Amar D. Sarwal
Vice President and Chief Legal Strategist
[email protected]
Evan P. Schultz
Senior Counsel and Director of Advocacy
Association of Corporate Counsel
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67
83
IN THE SUPREME COURT OF THE STATE OF OREGON
CRIMSON TRACE
CORPORATION, an Oregon
corporation,
Plaintiff-Adverse Party,
v.
DAVIS WRIGHT TREMAINE
LLP, a Washington limited liability
partnership, FREDERICK ROSS
BOUNDY, an individual, and
WILLIAM BIRDWELL,
an individual,
Defendants-Relators.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Multnomah County Circuit Court
Case No. 1108-10810
Oregon Supreme Court
Case No. S061086
BRIEF OF AMICUS CURIAE ASSOCIATION OF CORPORATE
COUNSEL IN SUPPORT OF PLAINTIFF-ADVERSE PARTY
CRIMSON TRACE CORPORATION
On Petition for Writ of Mandamus
Multnomah County Circuit Court
The Honorable Stephen K. Bushong
Amar D. Sarwal, Pro Hac Vice
[email protected]
Evan P. Schultz, Pro Hac Vice
[email protected]
1025 Connecticut Ave., N.W., Suite 200
(202) 293-4103
Attorneys for Amicus Curiae
Kelly Jaske, OSB No. 081704
[email protected]
Jaske Law LLC
521 SW Clay St., Suite 209
Portland, OR 97201
(503) 227-2796
Attorney for Amicus Curiae
August 2013
68
84
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................. ii
INTRODUCTION AND STATEMENT OF INTEREST ................................. 1
ARGUMENT ...................................................................................................... 4
A. Lawyers owe clients profound loyalty...................................................... 4
1. The entire attorney-client relationship rests on loyalty and
trust ....................................................................................................... 4
2. The duty of loyalty prohibits lawyers from taking on clients
with conflicting interests ..................................................................... 6
B. Loyalty to existing clients bars law firms from using privilege
against them .............................................................................................. 7
1. The court below correctly denied privilege here.................................. 7
2. The law firm had no right to try to hire itself ....................................... 9
3. The duty of loyalty reaches beyond even a regular fiduciary’s
responsibilities ................................................................................... 10
C. The parade of horribles that the firm holds up will not occur ................ 11
1. Law firms surrender rights when clients hire them ............................ 11
2. Oregon’s privilege statute does not mix up lawyers with
clients, and does include the loyalty duty ............................................. 13
3. This Court routinely considers professional responsibility
rules outside of the disciplinary setting ................................................. 14
4. Law firms can assert an internal law firm privilege when the
loyalty duty allows it .............................................................................. 15
CONCLUSION ................................................................................................. 16
CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND
TYPE SIZE REQUIREMENTS ....................................................................... 18
CERTIFICATE OF FILING AND SERVICE ................................................. 19
69
85
ii
TABLE OF AUTHORITIES
Cases
Bank Brussels v. Credit Lyonnais, 220 F Supp 2d 283 (SDNY 2002)...... 6, 8, 12
Cold Spring Harbor Lab v. Ropes & Gray LLP, No. 11-10128-RGS,
2011 US Dist. LEXIS 77824 (D Mass 2011) ....................................................8
Crimson Trace Corp. v. Davis Wright Tremaine, LLP, No. 110810810, Op. Re: Alt. Writ of Mandamus (Apr 2, 2013) ...............................8, 10
Flatt v. Superior Court, 9 Cal 4th 275, 885 P2d 950 (Cal. 1994) ......................10
In re Drake, 292 Or 704, 642 P2d 296 (1982) .....................................................5
In re Hassenstab, 325 Or 166, 934 P2d 1110 (1997) ...........................................5
In re Schaffner, 325 Or 421, 939 P2d 39 (1997) ..................................................4
In re: SonicBlue, Inc., Adv. No. 07-5082, 2008 Bankr LEXIS 181
(Bankr ND Cal Jan. 18, 2008) .....................................................................8, 11
In re: Sunrise Sec. Lit., 130 FRD 560 (ED Penn 1989) .......................................9
Kidney Ass’n of Oregon, Inc. v. Ferguson, 315 Or 135, 843 P2d 442
(1992) ............................................................................................... 6, 9, 14, 15
Koen Books Distribs. v. Powell, Trachman, Logan, Carrle, Bowman
& Lombardo, P.C., 212 FRD 283 (ED Pa 2002) ..............................................8
Meinhard v. Salmon, 249 NY 458, 164 NE 545 (NY 1928) ................................6
Thelen Reid & Priest LLP v. Marland, No. C 06-2071 VRW, 2007 US
Dist. LEXIS 17482 (ND Cal 2007) ...................................................................8
Trammel v. United States, 445 US 40, 100 SCt 906, 63 LEd2d 18
(1980) ..............................................................................................................16
Upjohn Co. v. United States, 449 US 383, 101 SCt 677, 66 L Ed 2d
584 (1981) ...................................................................................................3, 16
Valente v. Pepsico, Inc., 68 FRD 361 (D Del 1975) ................................... 10, 14
Williams v. Reed, 29 F Cas 1386 (CC Me 1824)..................................................4
Rules
RPC 1.6(b)(4)........................................................................................................1
RPC 1.7(a)(1) ........................................................................................................6
RPC 1.7(a)(2) ........................................................................................................6
70
86
iii
RPC 1.7(b)(4)........................................................................................................7
Treatises
ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS (1992) .............................5
RESTATEMENT (THIRD) OF THE LAW OF GOVERNING LAWYERS ........... 5, 7, 12, 13
Other Authorities
ABA MODEL RULES, Preamble, cl. 1 ..................................................................11
ABA MODEL RULE 1.6(b)(5) ................................................................................1
ABA MODEL RULE 1.7(a)(2)) ...............................................................................6
ABA MODEL RULE 1.7(b)(4) ................................................................................7
ACC Advocacy, at http://advocacy.acc.com/tags/privilege/ ................................2
California Bar Standing Committee on Professional Responsibility
and Conduct, Formal Opinion 1984-83 (1984) .................................................6
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INTRODUCTION AND STATEMENT OF INTEREST
Clients pay law firms to serve them as advocates, not fight them as
adversaries. In other words, more than anything else, clients need loyalty and
transparency from outside law firms. That is why the legal profession values
lawyers’ duty of loyalty as a bedrock principle. Without it, firms can turn their
knowledge and their experience and even their claims about ethical rules
against clients whenever it suits them, as this case demonstrates. Creating a new
privilege that applies only to law firms and allows them to hide information
from existing clients would allow lawyers to put their own interests first, even
when doing so harms their existing clients. Lawyers would be free to hide
evidence of malpractice from their clients, undermining the fundamental bond
of trust that inheres in the lawyer-client relationship. The duty of loyalty
demands the opposite.
Indeed, if law firms retained privilege over this client-related information
and the government or some third party wanted access to that confidential
information, who would have authority to waive the privilege? The law firm?
The client? Both? And the perplexity does not end there. Traditionally, if a law
firm seeks payment on fees from a client or to otherwise defend the
representation itself, it is free to introduce otherwise-confidential information
into the case. See RPC 1.6(b)(4), see also ABA MODEL RULE 1.6(b)(5) (same
language). If there is indeed an internal law firm privilege of the sort proffered
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in this case, can a client seeking to prove malpractice by its law firm introduce
otherwise-confidential information (from the law firm’s perspective) into the
case? If not, why not?
Naturally, given these sorts of questions, the issue that this case presents
– whether law firms can rely on misguided claims of privilege to hold back
information from existing clients about the clients’ own matters – deeply affects
the Association of Corporate Counsel and its members. ACC is a global bar
association that promotes the common professional and business interests of inhouse counsel. For 30 years, ACC has advocated across the country to ensure
that courts, legislatures, regulators, bar associations, and other law or policymaking bodies understand the role of true in-house counsel and the legal
departments where they work. ACC has over 30,000 members who are in-house
lawyers employed in more than 75 countries by over 10,000 organizations.
These include public and private corporations, partnerships, trusts, and nonprofits. But ACC’s long-standing policy bars membership to lawyers who work
at law firms, even if they are characterized as “in-house counsel.”
Since its creation, ACC has championed attorney-client privilege. In one
filing after another – in the United States and around the world – ACC has
pushed courts and agencies to adopt and expand the scope of the privilege. 1
And ACC has especially advocated to ensure that a robust privilege applies to a
1
See http://advocacy.acc.com/tags/privilege/ (listing recent briefs, letters,
and meetings where ACC has advocated for stronger attorney-client privilege).
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client’s confidential communications with in-house lawyers, as the Supreme
Court held in Upjohn Co. v. United States, 449 US 383, 390, 101 SCt 677, 66
L Ed 2d 584 (1981). No one holds the bona fide attorney-client privilege in
higher esteem than ACC.
But the privilege must serve the broader relationship between law firms
and the clients who hire them. That relationship rests on trust. Without it, inhouse lawyers and their clients would have no good reason to securely rely on
lawyers. ACC’s members hire law firms for every imaginable legal assignment
– to litigate bet-the-company cases, to write and enforce contracts that ensure
necessary revenue and resources, to restructure their businesses to better serve
consumers and shareholders, and even to investigate them internally for
potential wrongdoing when something may be wrong. These issues are
sensitive. Companies by necessity make themselves vulnerable to law firms
they hire. Recognizing an internal privilege that law firms can assert against
existing clients will corrode that trust. It will lead clients to fear that the law
firms they hire will use it against them, as the law firm in this case has done.
And that fear may well lead clients to hesitate to seek outside legal advice, a
result that directly contradicts the goal of the attorney-client privilege.
Finally, ACC emphasizes that it knows in-house counsel. Its members are
in-house counsel. It works to promote and protect the interests of in-house
counsel in a legal culture that can treat them as second-class citizens while often
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going out of its way to accommodate law firms at the expense of their clients.
Law-firm lawyers are not in-house counsel – especially not when they wear that
hat to harm their actual clients. Law-firm lawyers are not at liberty to act as free
agents. They must put their clients’ interests before their own. In the
relationship, they cannot use privilege to protect themselves at the expense of
their own clients. Firm lawyers with clients must answer to a higher standard.
Therefore, ACC urges this Court to not grant the writ, and to refuse to
recognize the existence of an internal law firm privilege that undermines the
lawyer’s primary duty of loyalty to the client.
ARGUMENT
A.
Lawyers owe clients profound loyalty.
1.
The entire attorney-client relationship rests on loyalty and trust.
US Supreme Court Justice Joseph Story held in a case almost 200 years
ago that a lawyer must work with “exclusive devotion to the cause confided to
him,” and ensure “that he has no interest, which may betray his judgment, or
endanger his fidelity.” Williams v. Reed, 29 F Cas 1386, 1390 (CC Me 1824).
That essential nature of the attorney-client relationship has not changed in two
centuries, as ethics standards in Oregon and the United States clearly
demonstrate.
This Court has stated that “the most important ethical duties are those
obligations which a lawyer owes to clients.” In re Schaffner, 325 Or 421, 426,
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939 P2d 39 (1997), quoting ABA STANDARDS FOR IMPOSING LAWYER
SANCTIONS at 6 (1992) [hereinafter “ABA STANDARDS”] (available at
http://www.americanbar.org/content/dam/aba/administrative/professional_respo
nsibility/corrected_standards_sanctions_may2012_wfootnotes.authcheckdam.p
df). It has repeatedly emphasized that “[t]he client’s trust and confidence in the
lawyer is, in many cases, an indispensable ingredient in the relationship.” In re
Hassenstab, 325 Or 166, 178, 934 P2d 1110 (1997), quoting In re Drake, 292
Or 704, 713, 642 P2d 296 (1982). This Court also stated in Hassenstab that a
lawyer’s conduct cannot violate “the principles of trust and confidence that
should exist in every lawyer-client relationship.” Id.
Other authorities and jurisdictions treat the duty of loyalty with equal
reverence. According to the American Bar Association, “[m]embers of the
public are entitled to be able to trust lawyers to protect their property, liberty,
and their lives.” ABA STANDARDS at 6. Similarly, the RESTATEMENT (THIRD) OF
THE LAW OF GOVERNING LAWYERS makes
clear that “the law seeks to assure
clients that their lawyers will represent them with undivided loyalty” and that
“[a] client is entitled to be represented by a lawyer whom the client can trust.”
RESTATEMENT at § 121 cmt. b (emphasis added).
Very much along the same lines, the California Bar’s ethics committee
has stated that “[t]he most fundamental quality of the attorney-client
relationship is the absolute and complete fidelity owed by the attorney to his or
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her client.” Calif Bar Standing Comm on Prof Resp. and Conduct, Formal Op.
1984-83 (1984) (available at
http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=iiHlBo5qfrE%3D&tabid=
841#N_1_). Put another way, for lawyers, “[n]ot honesty alone, but the
punctilio of an honor the most sensitive, is . . . the standard of behavior.” Bank
Brussels v. Credit Lyonnais, 220 F Supp 2d 283, 286 (SDNY 2002) quoting
Meinhard v. Salmon, 249 NY 458, 464, 164 NE 545 (NY 1928) (Cardozo, J).
2.
The duty of loyalty prohibits lawyers from taking on clients with
conflicting interests.
This vital duty of loyalty, not surprisingly, prohibits lawyers from taking
on clients whose interests conflict with existing clients. According to Oregon’s
Rule of Professional Conduct 1.7, a lawyer of course must avoid direct
conflicts. RPC 1.7(a)(1). But more than that, lawyers must also avoid a conflict
that might exist if “there is a significant risk that the representation of one or
more clients will be materially limited by a lawyer’s responsibilities to another
client . . . or by a personal interest of the lawyer.” RPC 1.7(a)(2). See also
Kidney Ass’n of Oregon, Inc. v. Ferguson, 315 Or 135, 143, 843 P2d 442
(1992) (“[o]ne of the disciplinary rules prohibits a lawyer, in most instances,
from representing two clients whose interests conflict.”)
This same prohibition on conflicts between the client’s interests and the
lawyer’s interests exists in the ABA’s Model Rules of Professional Conduct
(see ABA MODEL RULE 1.7(a)(2)). It also exists in the RESTATEMENT. See
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RESTATEMENT at § 121 (“a lawyer may not represent a client if the
representation would involve a conflict of interest.”); § 125 (“a lawyer may not
represent a client if there is a substantial risk that the lawyer’s representation of
the client would be materially and adversely affected by the lawyer’s financial
or other personal interests.”).
And in the narrow circumstances in which the lawyer may still want to
represent a client despite the conflict, the lawyer may do so only if “each
affected client gives informed consent, confirmed in writing.” RPC 1.7(b)(4).
See also ABA MODEL RULE 1.7(b)(4) (using same language); RESTATEMENT at
§§ 121, 125 (requiring consent to waive conflicts).
B.
Loyalty to existing clients bars law firms from using privilege
against them.
1.
The court below correctly denied privilege here.
None of the arguments above is particularly controversial. No one would
for a minute think that a law firm can ethically start to represent a new client
whose interests conflict with those of an existing client, at least without giving
notice and receiving a waiver. But the law firm here wants a special rule, when
the new “client” is itself. That is precisely the wrong conclusion to draw. If the
duty of loyalty means anything, it means that law firms especially cannot take
themselves on as clients. Instead, they must put their clients’ needs before their
own, as the duty of loyalty demands.
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That is the conclusion that the court below correctly drew. As it stated,
the firm’s “ duciary duties of candor, disclosure, and loyalty to its outside
client – Crimson Trace – were paramount.” Crimson Trace Corp. v. Davis
Wright Tremaine, LLP, No. 1108-10810, Op. Re: Alt. Writ of Mandamus (Apr
2, 2013) at 3.
The firm here is not the first to ask for special treatment and an
exemption from its duty of loyalty. But a long line of cases have rejected those
pleas. See, e.g., Bank Brussels, 220 F Supp 2d at 286 (“[t]herefore, while [the
firm] was still in the employ of [the existing client], [the firm] was still
obligated to maintain a fiduciary duty to [the existing client], even in
performing its internal conflict review.”); In re: SonicBlue, Inc., Adv. No. 075082, 2008 Bankr LEXIS 181, at *28-*29 (Bankr ND Cal Jan. 18, 2008)
(“[a]ttorneys are governed by an ethical code that requires the utmost loyalty on
the part of the attorney, including the duty not to represent another client if it
would create a conflict of interest with the first client.”); Koen Books Distribs.
v. Powell, Trachman, Logan, Carrle, Bowman & Lombardo, P.C., 212 FRD
283, 286 (ED Pa 2002) (“the firm still owed a fiduciary duty to plaintiffs while
they remained clients. This duty is paramount to its own interests.”); Cold
Spring Harbor Lab v. Ropes & Gray LLP, No. 11-10128-RGS, 2011 US Dist.
LEXIS 77824, at *5 (D Mass 2011), (in patent case, “[the firm’s] fiduciary duty
to [the existing client] overrides any claim of privilege.”); Thelen Reid & Priest
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LLP v. Marland, No. C 06-2071 VRW, 2007 US Dist. LEXIS 17482 at *19-*20
(ND Cal 2007), (“[the law firm’s] fiduciary relationship with . . . a client lifts
the lid on these communications.”); In re: Sunrise Sec. Lit., 130 FRD 560, 597
(ED Penn 1989) (“law firm’s communication with in-house counsel is not
protected by the attorney client privilege if the communication implicates or
creates a conflict between the law firm’s fiduciary duties to itself and its duties
to the client seeking to discover the communication.”).2
These opinions use reasoning essentially identical to the analysis of the
lower court here. Those courts were correct, and so is the court below.
2.
The law firm had no right to try to hire itself.
This Court has held that “[r]epresenting clients in actual conflict is
barred.” Ferguson, 315 Or at 145. Put another way, the law firm here simply
never had the authority to treat itself as a client. Its loyalty duty demanded that
the firm place its client’s interest above its own. Given that ironclad duty, and
given the brewing conflict between itself and its client, the firm simply could
not hire itself.
The California Supreme Court came to a similar conclusion in another
case involving conflicting clients, though one that involved a law firm trying to
serve two external clients in conflict. The Court held that the law firm simply
2
For a discussion of other cases considering whether law firms can assert
privilege against existing clients, see Plaintiff-Adverse Party’s Answering Br at
39-43.
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had no obligation whatsoever to the second client that hired it. According to the
Court, “the requirement of undivided loyalty to the first client negates any duty
on the part of the attorney to inform the second client” of even harmful legal
issues. Flatt v. Superior Court, 9 Cal 4th 275, 279, 885 P2d 950 (Cal. 1994)
(emphasis added). See also Valente v. Pepsico, Inc., 68 FRD 361, 368 (D Del
1975) (“in situations which involve other obligations of attorneys . . . , the
applicability of the privilege must be determined in light of the obligations.”).
Just like in Flatt, here, the law firm’s loyalty duty ran to the client it
already had, and nowhere else.
3.
The duty of loyalty reaches beyond even a regular fiduciary’s
responsibilities
In reaching its conclusion that the attorney-client privilege does not apply
here, the court below used the language of “fiduciary” duty. Crimson Trace, at
3. Many of the opinions quoted above that have rejected an internal law firm
privilege use similar phrasing as well.
Viewing the duty of loyalty as a fiduciary duty captures only by analogy
some of the scope of lawyers’ obligations to their clients. Using that analogy is
fine as far as it goes, and will indeed lead this Court to the correct conclusion,
just as it worked for the court below. But in fact, a lawyer’s obligation of
loyalty stems from the lawyer’s professional obligations, rather than from trust
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law. Any changes to or new interpretations of the law of trusts or fiduciaries
should not affect how courts view lawyers’ duty of loyalty. 3
Viewed in its entirety, the duty of loyalty demands even more of lawyers
than of fiduciaries. As the court in Sonic Blue noted, the “very nature of the
attorney-client relationship exceeds other fiduciary relationships where the
fiduciary must execute its duties faithfully on behalf of its beneficiaries.”
SonicBlue, 2008 Bankr LEXIS 181 at *28 (emphasis added). Or, in the words
of the ABA’s Model Rules, “[a] lawyer, as a member of the legal profession, is
a representative of clients . . . having special responsibility for the quality of
justice.” ABA MODEL RULES, Preamble, cl. 1 (emphasis added). That “special
responsibility” is the source of the lawyer’s loyalty, even more than a standard
fiduciary duty. See also id. at cl. 2, cl. 9 (requiring lawyer to “zealously” protect
the client’s interests). However high a standard the law imposes on a fiduciary,
it requires even more from a lawyer serving its existing clients.
C.
The parade of horribles that the firm holds up will not occur.
The firm makes a series of arguments about terrible things that will
happen if this Court grants the writ. There is no merit to these claims.
1.
Law firms surrender rights when clients hire them.
Much of the firm’s brief boils down to “What about us?” By repeatedly
referring to themselves as “clients,” the law firm and its lawyers beg the
3
For a fuller discussion of the differences between fiduciary duties and the
duty of loyalty, see Plaintiff-Adverse Party’s Answering Br at 50-53.
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question – shouldn’t they, just like every other client, have the right to
privileged communications?
In this context, no. As explained above in Section B-2, the firm had no
ability to take on a client – including itself – whose interests conflicted with the
one it already had. That is, to be sure, a limit – however small – on the firm’s
options. But part of a lawyer’s duty of loyalty involves accepting limits, in
exchange for the financial and other rewards of working as a licensed attorney
to help clients.
Requiring law firms to respect their duty of loyalty will not even prevent
them from obtaining legal advice internally. They are free to use the full body
of knowledge and experience from the lawyers that they employ. They simply
cannot keep those communications from their existing clients. As the court said
in Bank Brussels, 220 F Supp 2d at 288, “[c]ontrary to [the firm’s] arguments,
[the firm] can still perform its responsibilities under the Code of Professional
Responsibility—it just is not protected by the attorney-client privilege.” While
this does place law firms with loyalty duties in a different posture than other
actors, those other actors have not assumed the duty of loyalty.
The RESTATEMENT offers a helpful example of another restriction that the
duty of loyalty places on lawyers. Normally, lawyers have the ability to speak
their minds on matters of public policy. RESTATEMENT at § 125 cmt. e. But that
right has limits: “a lawyer’s right to freedom of expression is modified by the
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lawyer’s duties to clients.” Id. Therefore, “a lawyer may not publicly take a
policy position that is adverse” to a current client “if doing so would materially
and adversely affect the lawyer’s representation of the client in the matter.” Id.
That shushes lawyers from fully exercising their First Amendment rights. But
it’s part of the deal that lawyers strike when they decide to let clients hire them.
The same deal and the same limits apply here, and prevent the firm from
claiming privilege against Crimson Trace.
2.
Oregon’s privilege statute does not mix up lawyers with clients,
and does include the loyalty duty.
The firm also asserts that this Court can consider “only one source of
law” – the privilege statute, OEC 503 – when deciding this case. DefendantsRelators’ Br at 5. According to the firm, because that statute does not contain an
explicit “fiduciary” exception to privilege, this Court should treat the firm like
every other client. This reasoning is flawed.
Even relying on the express terms of the Oregon provision, the rule
nowhere grants a pass to ignore the traditional structure of the attorney-client
relationship. Rather, it proceeds on the basis that, for purposes of the attorneyclient relationship and the attorney-client privilege, the client is the client and
the lawyer is the lawyer. There’s no evidence that the rule intends to mix up the
relationship. In other words, the duty of loyalty is implicitly embedded in the
privilege statute.
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Further, reading the rule in the unduly strict manner that the firm
suggests would stack the deck in the firm’s favor. As discussed above, the firm
is most definitely not an ordinary client. It’s not a client at all. Rather, it’s a
group of lawyers with a duty of loyalty to Crimson Trace. By asking this Court
to read the evidence statute to ignore the duty of loyalty, the firm seeks to
conveniently escape the main legal authority that imposes a higher standard on
the firm than on real clients.4
Oregon’s rules on privilege are essentially the same as the rules across
the country. As one court has stated, “[t]he attorney-client privilege is not
complex on its face. Whatever formulation is used . . . the elements of the
privilege are substantially the same.” Valente, 68 FRD at 366-367. Just as other
courts discussed above have used the duty of loyalty to reject claims of internal
law firm privilege, this Court should do the same.
3.
This Court routinely considers professional responsibility rules
outside of the disciplinary setting.
On a related note, the firm claims that even if the firm has potentially
committed an ethics violation here, it would be “irrelevant,” DefendantsRelators’ Br at 38, and at worst should be taken up in a separate proceeding
“reserved to this court and the Disciplinary Board appointed by the court.” Id. at
52 (quoting Ferguson, 315 Or at 141).
4
Perhaps not surprisingly, the defendants-relators’ opening brief to this
Court mentions the duty of loyalty only twice, and both times minimizes the
duty’s importance and scope. See Defendants-Relators’ Br at 30, 49.
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But this Court is not so stingy with Oregon’s ethics rules as the
defendants make it out to be. Ferguson concerned whether this Court can use
ethics rules to “illuminate a court’s inquiry” into a separate legal matter,
specifically, setting legal fees. 315 Or at 142. This Court answered with a clear
yes, stating “[t]his court has noted the applicability of disciplinary rules to nondisciplinary contexts.” Id. This Court should do the same here, and allow the
ethics rules to inform its privilege analysis.
4.
Law firms can assert an internal law firm privilege when the
loyalty duty allows it.
To be clear, ACC is not asking this Court to always deny attorney-client
privilege to law firms that represent themselves. Rather, this case – and
therefore this brief – only addresses the question of how to proceed when law
firms have duties of loyalty to existing clients. In other contexts, where the duty
of loyalty does not apply or has not yet attached, law firms can treat lawyers
within their firm as in-house counsel if they want to. They can do so when
deciding whether to accept new clients; when they sue someone on their own
behalf, or get sued, and there’s no loyalty duty involved; when they write
contracts for the firm; or need legal advice or counsel or assistance in any of the
myriad contexts that do not involve a duty of loyalty to existing clients. In those
situations, law firms are just like everyone else when it comes to legal advice,
and the privilege that attaches to it. Because just like everyone else, they would
not be operating under a duty of loyalty. But for the period of time at issue in
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this case, with this client, and with this law firm, the duty of loyalty applied
with full force.
CONCLUSION
Even considering the vital importance of the attorney-client privilege, it
serves the broader duty of loyalty. The privilege ensures that “the professional
mission is to be carried out.” Upjohn, 449 US at 389 (quoting Trammel v.
United States, 445 US 40, 51, 100 SCt 906, 63 LEd2d 18 (1980)). The
professional mission, of course, is to serve the client. Lawyers cannot assert a
privilege that exists solely to serve their clients in order to interfere with a
client. In that context, the law firm is not a client, and cannot hire itself. Its duty
of loyalty runs only to an existing client, which means it cannot assert privilege
against one.
///
///
///
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Therefore, ACC requests that this Court deny the writ that the law firm
has requested.
DATED: August 8, 2013
Respectfully submitted,
/s/ Kelly Jaske_____________________
[email protected]
Jaske Law LLC
521 SW Clay St., Suite 209
Portland, OR 97201
(503) 227-2796
Amar D. Sarwal, Pro Hac Vice
[email protected]
Evan P. Schultz, Pro Hac Vice
[email protected]
1025 Connecticut Ave., N.W., Suite 200
(202) 293-4103
Attorneys for Amicus Curiae
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CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH
AND TYPE SIZE REQUIREMENTS
Brief length
I certify that (1) this brief complies with the word-count limitation in ORAP
5.05(2)(b), and (2) the word count of this brief (as described in ORAP
5.05(2)(a)) is 3,892 words.
Type size
I certify that the size of the type in this brief is not smaller than 14 point for
both the text of the brief and footnotes as required by ORAP 5.05(4)(f).
/s/ Kelly Jaske_____________________
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The Future of Ethics for In-House Counsel - ACC.com

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