Lawyer mobility is a challenge for firms, bar

With Colorado joining a growing number of states continuing to explore changes to multijurisdictional practice rules, lawyers are calling for California to follow suit.

According to Allison Martin Rhodes, partner and deputy general counsel at Sheppard Mullin, state-by-state licensing requirements that limit where a lawyer can physically work are a hold out of an outdated economy.

"The regulatory climate has long posed challenges for clients who want access to law firms that can serve their needs with flexibility across state lines. Since their businesses are rarely contained to state borders, they don't want their lawyers to be contained either," Martin Rhodes said.

Martin Rhodes said inconsistent exceptions for multijurisdictional practice and lawyer mobility are challenging for law firms to manage.

"The pandemic has served to bring this issue to the forefront of some bar regulators," Martin Rhodes said. "Lawyers are now required by pandemic disruption and, in some cases, state orders and travel restrictions, to work from a physical perspective where they can."

The Colorado Supreme Court announced in November it is considering changes to attorney admissions rules. The proposal would affect attorneys licensed elsewhere or who took the uniform bar exam who are seeking admission in Colorado.

If the proposal passes, it would eliminate the current reciprocity requirement for lawyers admitted in another United States jurisdiction. It would also extend the multistate professional responsibility examination's validity from two to five years.

Lawyers could also appear in state courts while an application is pending without applying for pro hac vice if the attorney is employed by a state agency or a nonprofit legal services provider.

A Florida Bar ethics committee also issued a proposal in August to relax restrictions on where lawyers can live and practice.

The proposal came after a New Jersey attorney moved to Florida and established an office in the state to continue to work for his New Jersey-based law firm. The lawyer would only represent New Jersey clients by using his laptop connected to the firm's network.

The committee found the lawyer was not practicing Florida law nor providing legal services to the state's residents and could therefore practice law in New Jersey from his home in Florida.

Kendra L. Basner, partner at O'Rielly & Roche LLP, said Colorado's proposal would enable lawyers to move around freely without fear of violating unauthorized practice laws.

"This avenue may even be more attractive to most states because it identifies who is practicing law in the state (and allows the state to disapprove applicants not in good standing or with poor moral character), helps the state to maintain jurisdiction over the actions of these lawyers, and, most importantly, the state gets the financial benefits of requiring the lawyers to apply for and then maintain a license in that state," Basner wrote in an email. "California does not have reciprocity with any state and requires lawyers licensed in other states to still sit for the "attorney bar exam"'

Other than the attorney bar exam, lawyers not licensed in California also must have a positive moral character determination. An out-of-state lawyer also must pass the multistate professional responsibility examination before being allowed to practice in the state.

"Interestingly, in a job market, for most things, that is increasingly geographically agnostic, law remains an extraordinarily geographically linked career," said Keith Wetmore, managing director at Major, Lindsey & Africa, the legal search firm.

Wetmore explained that different law firms take various approaches to geographical dependence. Major employment and labor firms, such as Littler Mendelson PC, have attorneys licensed in all states to offer seamless cross-border advice for firms who are looking to lay-off people across the country.

Other firms, advising in mergers and acquisitions or multistate product liability claims, rely more on expertise or partnerships with other firms in the relevant region, Wetmore said.

"No general counsel ever said, 'Well, I can't use Wachtell Lipton [Wachtell, Lipton, Rosen & Katz] because the assets in this M&A transaction are located in Iowa,'" Wetmore said. "Major case strategy expertise is not geographically linked."

While rules concerning multijurisdictional transactions are unlikely to change, bar associations should do more to accommodate remote work, according to Wetmore.

"As somebody who used to run a law firm, I'd say in many respects, it's time for bar associations to recognize an evolution in practice," Wetmore said. "Remote working is one of the most significant modern trends. And if they focus on their real purpose, which is protecting clients and their jurisdiction, they really don't have any business messing with remote lawyering practicing remote law."

Martin Rhodes said states have started to acknowledge lawyers may be working remotely in a state where they are not licensed. She pointed out that the provisional licensing program available to 2020 law school graduates in California, is a step in the right direction.

"As a law firm with offices in multiple states, we are keeping up with the changing rules and complex web of deadlines, applications and requirements, but we are pleased to see the regulators taking a practical view of the situation," Martin Rhodes. "Hopefully, some of that will survive the pandemic and result in more reasoned regulation in this area."