Multijurisdictional practice is not new, nor should it be feared

One of Phil Hartman's recurring characters on Saturday Night Live was Caveman Lawyer, who was compelling in his advocacy because he relied on the simple things he had learned a long time ago. In one segment, he stated something to the effect, "It may be a good idea, but it is a new idea. Therefore, it must be feared and rejected."

Sometimes, it may seem like changes to the legal profession occur at a slower pace than they should. Though it may be an overstatement, fear of change sometimes results in rules gone stale. So is the case with Model Rule 5.5.

The American Bar Association's interest in amending the rule to permit greater flexibility in multijurisdictional practice is not new. Indeed, the topic was raised roughly two decades ago...and promptly shot down.

It should not be surprising that the concept - one born from the century-old Root report that laid the foundation for many of the current ideas about what should determine who can practice law in a jurisdiction - has, in the eyes of at least some, become outdated. When considering that the ideas to have formal testing and moral character assessment following three years of law school arose at a time when travel was considerably different and there was an effort to "purge" the "unfit" from the profession - and at a time when the demographics of lawyering was changing - it may be easy to see that the way law is practiced and regulatory goals for admission have both changed quite a bit.

Accordingly, efforts to revise Model Rule 5.5 are once again proceeding. Last year, the Association of Professional Responsibility Lawyers released a proposed revision of the rule, along with a white paper describing why change was needed. Shortly afterward, the ABA's Standing Committee on Ethics and Professional Responsibility circulated for comment its own version among each of the committees with the Center for Professional Responsibility.

Both organizations proposed amendments that would essentially permit lawyers who are in good standing in any U.S. jurisdiction and who comply with pro hac vice rules to represent clients regardless of where the lawyer is licensed. The feedback that came from the various committees in the Center was largely positive on substance, but raised questions about implementation. Given the long-standing infrastructure that has been in place to address lawyers who are presumptively and primarily assisting clients in the states where they pay a licensing fee, such concerns are inevitable.

These run the gamut from whose rules of professional conduct will govern the lawyer's conduct (to the extent not addressed by Model Rule 8.5); who would investigate misconduct or use their client protection funds; how would the professional liability insurers assess risk, and even how clients access the information they need to assert claims and protect themselves. Accordingly, the ABA formed a working group to address these problems before ultimately returning to propose a finished rule amendment.

At its midyear meeting, the ABA hosted a roundtable on the subject. Notably, the discussion was universally in support of the concept. The only issues raised by regulators in the room is that they would want to know how to locate the lawyers practicing in their jurisdiction, and who would take the lead in any necessary investigation or discipline.

Of course, there is a long way to go for any real change on this front. Even if the idea passes in the House of Delegates, the amendment will need a certain critical mass of jurisdictions to adopt it for it to make a noticeable difference. But the courts have been informed about these developments - at least one state's highest court has invited a discussion about the subject - and hope remains that perhaps it is time to make that step forward.

Maybe this is a good idea that will not be feared or rejected.

David M. Majchrzak is a shareholder and deputy general counsel at Klinedinst PC.