Special Committee Multijurisdictional Practice

Recommendations of the District of Columbia Bar Board of Governors, Acting on the Report of the Special Committee on Multijurisdictional Practice

Recommendations

Rule 49(a) of the District of Columbia Court of Appeals generally prohibits any person from practicing law in the District of Columbia unless the person is an active member of the District of Columbia Bar or “except as otherwise permitted by these Rules.” Rule 49(c) contains a number of exceptions to this general rule, and these exceptions effectively permit several forms of multijurisdictional practice. In addition, Rule 49(b)(3) defines practice of law “[i]n the District of Columbia” as “conduct in, or conduct from an office or location within, the District of Columbia, where the person’s presence in the District of Columbia is not of incidental or occasional duration.” (Emphasis added.) As explained in the comments to Rule 49(b)(3), the italicized language is intended to permit the provision of legal services in the District of Columbia by non D.C. Bar members on an incidental and temporary basis. This provision has a narrower counterpart in the new ABA Model Rule 5.5(c), which authorizes a lawyer admitted in another U.S. jurisdiction to “provide legal services on a temporary basis in this jurisdiction” in four specific circumstances.

The Committee did not favor reducing the scope of multijurisdictional practice currently allowed by Rule 49.[3] The Committee’s recommendations were instead intended to authorize additional forms of multijurisdictional practice that are expressly permitted under Model Rule 5.5 but that are not now expressly encompassed by Rule 49. The Committee also recommended incorporation of the Model Rule’s prohibition on multijurisdictional practice by any person who has been disbarred or suspended in any jurisdiction.

The Committee made the following five recommendations, which the Board of Governors approves:

Recommendation 1. A non member of the D.C. Bar should be permitted to provide legal services in or reasonably related to pending or potential arbitration, mediation, or other alternative dispute resolution proceedings, as long as he or she (a) is authorized to practice law by the highest court of a state or territory or by a foreign country and is not disbarred or suspended for disciplinary reasons from, and has not resigned with charges pending in, any jurisdiction or court; (b) does not begin to provide such services in more than five alternative dispute resolution proceedings in the District of Columbia per calendar year; and (c) does not practice in the District of Columbia except under another exception in Rule 49.

Rule 49(c) does not now expressly address practice by non-D.C. Bar members in alternative dispute resolution (“ADR”) proceedings. Rule 49(b)(3) currently allows lawyers licensed in other jurisdictions to represent clients in ADR proceedings so long as their presence in the District of Columbia is of incidental or occasional duration.[4]

The Committee recommended that a new subsection (12) be added to Rule 49(c) allowing lawyers who are not D.C. Bar members to represent clients in ADR proceedings in specified circumstances. Appendix A includes the specific provision and related commentary that we propose.

We recommend this addition to further the strong public policy favoring the efficient and expeditious resolution of disputes outside the judicial process. The proposed option for clients who agree to resolve their disputes through ADR proceedings to retain attorneys who are not members of the D.C. Bar is generally equivalent to the option provided through the pro hac vice exception in Rule 49(c)(7) for clients who choose to resolve their disputes in judicial proceedings. The purpose of this exception is to expand the ability of lawyers to represent clients in ADR proceedings that require more than incidental presence in the District.

Our proposed Rule 49(c)(12) contains three important provisos, each of which is based on provisos for the pro hac vice exception in Section (c)(7). First, the lawyer must be authorized to practice law by the highest court of a state or territory or by a foreign country, and must not be disbarred or suspended for disciplinary reasons, or have resigned with charges pending, in any jurisdiction or court. Second, the lawyer may begin to provide services in no more than five ADR proceedings in the District of Columbia in each calendar year. An ADR proceeding would not count as a new ADR proceeding for purposes of the rule if it is ancillary to a judicial proceeding in which the lawyer is admitted pro hac vice (for example, when the court orders or encourages the parties to try to resolve the suit through ADR). Similarly, the limit of five new ADR proceedings annually would not apply so long as the lawyer’s participation in an ADR proceeding in the District of Columbia is temporary and incidental to his or her practice in another jurisdiction. Third, the lawyer may not maintain a base of operations in the District of Columbia or otherwise practice here, unless the lawyer qualifies under another exception in Rule 49(c).

Recommendation 2. The current provision of Rule 49 allowing a lawyer who is not a member of the District of Columbia Bar, but who is authorized to practice elsewhere, to provide legal services in the District of Columbia on an incidental basis (Rule 49(b)(3)) should be placed in a new exception, clarified, and amended to exclude lawyers who have been disbarred or suspended for disciplinary reasons or resigned with charges pending in any jurisdiction or court.

This recommendation is intended to reaffirm and to clarify the scope of multidisciplinary practice currently permitted by Rule 49(b)(3), which defines practice “[i]n the District of Columbia” as “conduct in, or conduct from an office location within, the District of Columbia, where the person’s presence in the District of Columbia is not of incidental or occasional duration.”

The Committee recommended that the authorization of multijurisdictional practice currently reflected by definition in Rule 49(b)(3) be moved from that subsection of the rule to a new exception in Rule 49(c), which contains the other exceptions to the general proscription of the practice of law by non-D.C. Bar members. Specifically, the Committee recommended the addition of the following new subsection (13) to Rule 49(c):

Incidental and Temporary Practice: Providing legal services in the District of Columbia on an incidental and temporary basis, provided that the person is authorized to practice law by the highest court of a state or territory or by a foreign country (and a lawyer admitted only in a foreign country must be engaged in the practice of law in that country), and is not disbarred or suspended for disciplinary reasons and has not resigned with disciplinary charges pending in any jurisdiction or court.

We think this aspect of multijurisdictional practice should be reflected in a new exception in Rule 49(c), rather than in Rule 49(b)(3), for the following reason. The definition of the practice of law “in the District of Columbia” to exclude practice on an incidental and temporary basis is awkward: even if one practices here only on an incidental or temporary basis, one is still physically practicing “in” the District of Columbia.

Our proposed addition to Rule 49(c) incorporates a restriction not now reflected in Rule 49(b)(3) – that is, a lawyer may engage in multijurisdictional practice here on an incidental and temporary basis only if he or she has not been disbarred or suspended for disciplinary reasons and has not resigned with charges pending in any jurisdiction or court. A similar restriction is included in the ABA’s Model Rule 5.5(c), concerning the provision of legal services on a temporary basis, and we think the restriction is salutary and in the interest of protecting the public.

The language of proposed Rule 49(c)(13) differs from current Rule 49(b)(3) in another respect. Rule 49(b)(3) speaks of presence in the District of Columbia that is not “of incidental or occasional duration.” Our proposed Rule 49(c)(13) speaks of “[p]roviding legal services in the District of Columbia on an incidental and temporary basis.” We recommend the change because we believe the term “incidental or occasional duration” is confusing. We also believe that the word “temporary” is more appropriate than “occasional,” and that it is preferable to track the terminology of ABA Model Rule 5.5(c), which uses the word “temporary.” Finally, we recommend that the multijurisdictional practice permitted under our proposed Rule 49(c)(13) be on an incidental and temporary basis, rather than using the disjunctive formulation currently in Rule 49(b)(3).

The MJP Committee drafted proposed commentary to revised Rule 49(b)(3) and to new Rule 49(c)(13). The commentary to both provisions draws from but substantially modifies the current commentary to Rule 49(b)(3). The Committee, for example, amended the comment to Rule 49(b)(3) to clarify that Rule 49 does not apply unless a lawyer is physically present in the District, and that “virtual presence” through correspondence or electronic communications with persons in the District is not sufficient to constitute unauthorized practice here. The language of the current comment is ambiguous on that issue.

The Committee’s proposed changes to Rule 49 and its commentary were not intended to prohibit any multijurisdictional practice currently permitted under Rule 49(b)(3), including multijurisdictional practice by foreign lawyers. The proposed changes are primarily clarifying. The proposal also includes in the text of Rule 49(c)(13) key safeguards in Rule 46(c) that apply when foreign lawyers practice in the District of Columbia as special legal consultants, and adds commentary explaining the consistency between Rule 49(c)(13) and Rule 46(c)(4).

Appendix A includes proposed Rule 49(c)(13) as well as the commentary proposed for Rules 49(b)(3) and 49(c)(13).

Recommendation 3. The current provision of Rule 49 of the D.C. Court of Appeals excepting from the definition of unauthorized practice of law the activity of a non D.C. Bar member who provides legal services in any court of the United States following admission to practice in that court (Rule 49(c)(3)), or in a court of the District of Columbia following admission pro hac vice (Rule 49(c)(7)), should be clarified explicitly to except the provision of legal services reasonably related to a pending or potential proceeding in that court if such person reasonably expects to be admitted to practice in that court.

Rule 49(c)(3) currently permits the provision of legal services by a non-D.C. Bar member in any court of the United States following admission to practice before that court, and Rule 49(c)(7) currently permits the provision of legal services by a non-D.C. Bar member in the courts of the District of Columbia following admission pro hac vice. Neither rule expressly permits the provision of legal services reasonably related to a pending or potential proceeding before an application for admission is granted.

The comparable provision of the ABA Model Rule on multijurisdictional practice, Rule 5.5(c)(2), permits a lawyer to provide legal services that “are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer . . .is authorized by law to appear in such proceeding or reasonably expects to be so authorized.” (Emphasis added.) The MJP Committee recommended that Rules 49(c)(3) and (c)(7) be amended to conform to ABA Model Rule 5.5(c)(2). The amendment is consistent with the approach in Rules 49(c)(2)(A) and (c)(5)(A), which make the exception for certain practice before federal and D.C. agencies applicable to conduct “reasonably ancillary” to such matters. The comment to the Model Rule explains that examples of conduct permissible under the rule “include meetings with the client, interviews of potential witnesses, and the review of documents.”

Appendix A includes the amendment to Rule 49(c)(3) and (c)(7) that we propose.

Recommendation 4. The current provision of Rule 49 of the D.C. Court of Appeals specifying the contents of the declaration that must accompany each application for admission pro hac vice to a court of the District of Columbia (Rule 49(c)(7)(ii)) should be clarified and amended to require (a) a description of all disciplinary complaints pending against the applicant; (b) a description of the circumstances of all suspensions, disbarments, or resignations with charges pending in any jurisdiction or court; (c) a certification that the person has not had an application to the D.C. Bar denied, or a description of the circumstances of all such denials; and (d) a commitment by the applicant promptly to notify the court if, during the course of the proceeding, the person is suspended or disbarred for disciplinary reasons or resigns with charges pending in any jurisdiction or court.

Rule 49(c)(7), which governs pro hac vice admission to practice in a court of the District of Columbia, currently requires an applicant for admission pro hac vice to submit a declaration under penalty of perjury stating, among other things, that there are no disciplinary complaints pending against the applicant for violation of the rules of the courts of the states in which the applicant is admitted to practice, and that the applicant has not been suspended or disbarred for disciplinary reasons from practice in any court.

The rule does not by its terms address what an applicant or a court should do if there is a disciplinary complaint pending against the applicant, or if the applicant has ever been suspended or disbarred. The Court of Appeals’ Committee on Unauthorized Practice of Law has interpreted Rule 49(c)(7)(ii) to allow an applicant to “make changes necessary to make the sworn statement accurate and complete.” Opinion No. 9-01 (available at http://www.dcappeals.gov/dccourts/docs/ rule49_opinion9.pdf).

Consistent with this interpretation, the MJP Committee recommended that Rule 49(c)(7) be amended to require that an applicant for pro hac vice admission either certify that there are no pending disciplinary complaints and that he or she has not been suspended or disbarred or describe all pending complaints and the circumstances of all suspensions, disbarments, or resignations with charges pending. The proposed amendment is intended to make clear that the court may, in its discretion, grant an application for pro hac vice admission even if there are charges pending against the applicant or if the applicant has at some point been suspended or disbarred or resigned with charges pending. The MJP Committee believed that the fact that disciplinary charges have been filed against an applicant should not automatically prevent admission pro hac vice, and that the court should be permitted to take account of the substance and circumstances of the charges. Similarly, the Committee believed that the fact that an applicant has been suspended or disbarred or resigned with charges pending at some time in the past should not necessarily preclude admission pro hac vice, and that the court should be permitted to take account of such factors as how long ago the disciplinary action occurred, the facts underlying the action, and the applicant’s history since the disciplinary action occurred.

The MJP Committee also recommended that an applicant for pro hac vice admission be required to certify that he or she has not had an application for admission to the D.C. Bar denied, or to describe the circumstances of all such denials. The Rule does not now require such a certification or description. The Committee believed this information to be pertinent and that a court should be able to consider the circumstances of any denial of admission to the D.C. Bar in determining whether to exercise its discretion to grant an application for pro hac vice admission.

The Committee further recommended that an applicant for pro hac vice admission be required to agree to notify the court promptly if, during the course of the proceeding, he or she is suspended or disbarred for disciplinary reasons or resigns with charges pending in any jurisdiction or court. The Committee believed that this important information should be brought to the attention of the court for its consideration in determining whether to revoke admission pro hac vice.

Finally, the MJP Committee recommended that an applicant for admission pro hac vice be required to identify all jurisdictions and courts where the applicant is a member of the bar in good standing, and not merely the states in which the applicant is a member in good standing of the bar of the highest court, as Rule 49(c)(7) currently requires. Similarly, the Committee recommended that the disciplinary information required by the declaration accompanying an application for admission pro hac vice include such information about all courts and jurisdictions in which the applicant is admitted, and not just state courts.

Recommendation 5. The current provisions of Rule 49 of the D.C. Court of Appeals permitting (a) limited duration practice by a non D.C. Bar member as a lawyer employed by the government of the District of Columbia, (b) limited duration practice by a non D.C. Bar member with a pending application to the D.C. Bar, (c) the provision of pro bono legal services under certain circumstances by an inactive member of the D.C. Bar or by a non D.C. Bar member, and (d) the provision of legal services by a non D.C. Bar member as a part of certain court-authorized programs (Rule 49(c)(4), (8), (9), and (10)) should be amended to exclude practitioners who have been disbarred or suspended for disciplinary reasons from, or who have resigned with charges pending in, any jurisdiction or court.

Some provisions of Rule 49(c) permit lawyers in good standing in any jurisdiction to engage in multijurisdictional practice where no local court or administrative agency regulates such practice. The Committee recommended that such multijurisdictional practice be permitted only if the lawyer has not been disbarred or suspended for disciplinary reasons from, or resigned with charges pending in, any jurisdiction or court. Specifically, the Committee recommended that such a restriction be added to Rule 49(c)(4), (8), (9), and (10), the provisions that require the lawyer engaged in multijurisdictional practice to be in good standing in some jurisdiction or court. The amendment addresses the concern that lawyers practicing under this exception may be admitted in several jurisdictions and courts, and it may take a significant amount of time for reciprocal discipline to be imposed in all of the other jurisdictions where a lawyer who has been disciplined or resigned is admitted. The privilege of practicing law in the District of Columbia under these exceptions should not be extended to lawyers who have committed an ethical violation sufficiently serious to justify disbarment or suspension, or to cause them to resign with charges pending, in any jurisdiction or court.

Notes

  1. This is one reason why the Committee did not recommend a reciprocity requirement that would permit lawyers not admitted to the D.C. Bar to practice here only if their home jurisdiction permits D.C. lawyers to practice there in similar circumstances. A reciprocity provision would also be inconsistent both with the ABA Model Rules and with the tradition of the District of Columbia Court of Appeals to adopt policies that are justified on their own terms without such a reciprocity provision. Moreover, there is no reason to expect that a reciprocity requirement would have any significant practical effect in expanding multijurisdictional opportunities for D.C. lawyers.
  2. The ABA’s Model Rule 5.5(c)(3) authorizes multijurisdictional practice in ADR proceedings “on a temporary basis … 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.”

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