Vol. 80, No. 3, March 2007
When I ran for State Bar president-elect in 2005, I promised to do all I could to support the interstate practice of law, and the interstate practice of law is back in the news. On April 12 the Wisconsin Supreme Court will hold a hearing on a State Bar petition asking the court to adopt rules governing multijurisdictional practice (MJP) based on model rules approved by the American Bar Association. States around the country have raced to adopt MJP rules based on the ABA model rules in order to catch up with today's explosion of national and international practice. I voted against petitioning the court to adopt the rules, because I believe the rules actually will hinder MJP and place an outmoded 20th century regulatory framework on interstate practice for decades to come. With all due respect to the State Bar committee that studied and proposed these MJP rules, I hope that our supreme court either makes substantial changes to the proposed rules or directs the committee to propose a set of rules that will not just regulate but will actually encourage and facilitate the interstate practice of law.
History has shown that states are ingenious at strengthening the fences at their borders to prevent competition in legal services and the interstate practice of law. Every time a new idea has come up to make the interstate practice of law easier and to facilitate the movement of lawyers and legal services from state to state, states have devised new methods to avoid being dragged into the next century of legal practice. In the 1970s, when development of the multi-state bar exam (MBE) held the promise of a national bar exam that would be portable from state to state, states took advantage of the uniformity and administrative ease of the MBE but rejected its portability. Some states outright refused to accept MBE scores from tests taken in other states. Others allowed transfer of MBE scores for just a short time. (Wisconsin allows transfer of passing MBE scores that are less than 37 months old - liberal compared to most other states, conservative if you've just missed the cutoff.)
Then, in the 1980s, the U.S. Supreme Court took its turn at trying to break down state-imposed obstacles to interstate practice. In a series of cases the Court struck down residence requirements for both taking the bar exam and becoming a member of the bar. (The Court also found unreasonable a federal district court's admission requirement that lawyers have an office in the state in which the court was located.) But states have been ingenious in their efforts to rebuild the fences the Court has torn down. I don't want to discuss any of their methods here - for fear of putting protectionist ideas in anyone's head.
Now come the State Bar-proposed MJP rules, which on their face are designed to regulate the interstate practice of law, but I am afraid they will end up as an obstacle to it. The problem is that the rules are burdensome and expensive and will discourage interstate practice. A cynic might say that the rules are designed to protect lawyers as much as or more than the public. The rules include the traditional requirement that a lawyer not admitted in Wisconsin associate with a Wisconsin lawyer before providing legal services here - increasing the cost regardless of whether the representation involves a question of Wisconsin law. And pro hac vice appearances - which up to now have been subject to the informal discretion of circuit judges - are formalized and complicated with fees and complex application forms. These rules also would apply to state administrative proceedings, where participation of out-of-state lawyers has never presented a problem in Wisconsin. The rules will create a problem where none now exists. And the State Bar's proposed rules either modify or omit entirely ABA model rule provisions concerning in-house counsel and federal practitioners that actually would promote MJP.
So, here's hoping that the Wisconsin Supreme Court either amends the proposed State Bar MJP rules itself or directs the Bar committee to propose rules that actually will encourage, facilitate, and lower the cost of interstate and international law practice. By adopting its own rules that actually encourage and facilitate MJP, Wisconsin can distinguish itself from the rest of the country and invite the kind of interstate and international law and business that will help improve the state's economy for everyone.
And, for lawyers and others who really want to make the coming flat world of law a reality that actually works, here is another radical proposal. Let's federalize the practice of law - at least those parts that don't vary from state to state. There is no reason that a lawyer who practices in areas of federal law (for example, federal taxation, criminal, securities, health care, immigration, and administrative law) should not be able to operate national or interstate practices without jumping over regulatory fences at the border of every state. When it comes to interstate commerce, we're all part of one country, not 50 separate nation states. Unless Congress acts to knock down artificial barriers to interstate (and international) legal practice, we'll be doing 21st century commerce with 20th century regulation of the practice of law.
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