Replacing Geographic Lines with Conceptual Lines: A Proposal for Limited Authorization of Multijurisdictional Practice of Law

By Medley, Patrick | Washington Law Review, September 1, 2019 | Go to article overview

Replacing Geographic Lines with Conceptual Lines: A Proposal for Limited Authorization of Multijurisdictional Practice of Law


Medley, Patrick, Washington Law Review


INTRODUCTION

A newly minted attorney, fresh from having passed the Oregon bar, hangs up her shingle in Portland, Oregon. A client contacts the attorney about a new case: he works as a fisherman and was injured while fishing in Canadian waters. He is currently being treated across the Columbia River in Vancouver, Washington, where the attorney also lives. He wants to bring an action in federal court under maritime law. The two meet at a hospital in Vancouver, discuss the case, and sign a contingency agreement.

Unfortunately, the attorney may have just committed unauthorized practice of law in Washington.1 Even if the attorney told her client up front that she was not admitted to practice in Washington and that she would only be able to represent him in federal court, where she was admitted to practice, this may not save her from charges of unauthorized practice.2 She could even face criminal charges.3

Upon realizing all of this and fearing these consequences, the attorney decides never to leave the state of Oregon. She eventually lands a large corporate client that wants to hire her on a continuing basis to handle a variety of legal matters. The client is a California corporation with offices in many states, including Oregon. The attorney only works from her office in Oregon and sends her work product by email and telephone to her client in California. Alas, even though she has never set foot in California, by handling corporate matters for the California corporation and communicating legal advice remotely, she may once again face charges of unauthorized practice of law.4

Admittedly, the odds of being prosecuted for these types of violations are small.5 Perhaps lawyers should just flout the law and trust that they will beat the odds?6 On the other hand lawyers, as a species, are often considered risk-averse.7 This risk aversion can benefit clients by tempering their own risk preference and alerting them to risks they would otherwise ignore.8 Yet it can also lead lawyers to systematically overestimate risks, and thus be excessively deterred in their practice, particularly where legal consequences are uncertain.9

And where rules against unauthorized practice of law are concerned, uncertainty is a major problem. Not only is "practice of law" ill-defined as a concept, but so too is the question of which state-or states-an attorney is practicing law in.10 Nor can one realistically avoid the danger of engaging in unauthorized practice by becoming authorized: licensure is on a state-by-state basis, so it is impossible to simply receive a blanket authorization to practice law.11

States have justified their restrictions on practice of law primarily on consumer-protection grounds.12 But the current system of controlling the practice of law at the state level inhibits interstate practice in a manner not justified by these arguments.13 Thus, there is a need for Congress to intervene.14

This comment discusses the problems involved in the current system of regulation of the practice of law and proposes a way that Congress can enable lawyers to practice law across state lines in some, but not all, aspects of legal practice. Part I discusses how the current system of regulation of law by individual states works and the barriers to multijurisdictional practice of law that result. part ii describes the tools available for Congress to intervene, the areas in which Congress already authorizes interstate practice of law, and the extent to which Congress may be limited in its intervention. part ii concludes by identifying a longstanding way of dividing the legal profession into in-court and outof-court practice as a candidate for drawing the line between the types of interstate practice that Congress should and should not authorize. Part III describes how Congress can use this dividing line to preempt local state monopolies on the practice of law and provide for uniform, interstate practice of law outside of court. …

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