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):
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
- 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.
- 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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