MJP debate focuses on pro hac vice rules

first_img March 1, 2005 Senior Editor Regular News MJP debate focuses on pro hac vice rules Gary Blankenship Senior Editor In the name of making it easier for lawyers to practice across state boundaries, The Florida Bar is proposing rule changes that would actually restrict some practices, according to opponents of proposed rule changes on multijurisdictional practices (MJP).But attorneys representing the Bar argued the rules make it easier for out-of-state attorneys to handle matters in Florida, but also adopt protections for clients.Both positions were presented to the Supreme Court on February 10, in oral arguments that lasted more than 90 minutes. The court was considering a package of rule amendments, both to the Rules Regulating The Florida Bar and the Rules of Judicial Administration, relating to lawyers practicing across state lines.The issue began several years ago when the ABA appointed a special committee to study the MJP issue. The Florida Bar followed with a committee first to provide input to the ABA panel, and then to evaluate the ABA report and make recommendations to the Bar Board of Governors.The Bar last year approved the committee’s final recommendations, after extensive review. The proposals allow out-of-state lawyers to come into the state to handle transaction and arbitration, mediation, and other dispute resolution matters as long as there is a “nexus” — a client who resides in or has a business where the lawyer is admitted or if it relates to an area of the lawyer’s practice.The rules also recommend that pro hac vice admissions for either court cases or arbitrations be limited to a maximum of three cases in a 365-day period. The current rule of judicial administration allows for three admissions but allows judges to approve lawyers handling additional cases.Those attorneys would also be required to register with the Bar and pay a $250 fee per case. They would also agree to submit to Supreme Court disciplinary jurisdiction.The three-case limit — dubbed “three strikes and you’re out” by opponents — was the focus of much of the oral arguments, particularly on how it would affect arbitration cases.John Yanchunis, who headed the Bar’s MJP Committee, told the court that multijurisdictional practices are a fact of life, even though a non-Bar member practicing in Florida is committing a felony under a new state unlicensed practice of law statute. The rules, he said, are intended to recognize that reality but also to require that when a lawyer’s practice on Florida matters extends beyond temporary and becomes a regular practice, that he or she take the bar exam and join The Florida Bar.The removal of a judge’s discretion to allow an out-of-state lawyer to handle more than three cases per year is an attempt to meet that goal and establish a fair and predictable standard, Yanchunis told the court. The crux, he said, is even as many lawyers’ practices are becoming national, admission and regulation are still state functions, and the Florida Supreme Court must find a way to guarantee citizens that lawyers regularly working in Florida are capable and ethical. The only way to do that, he added, is to have them take the bar exam and also pass the character and fitness review of the Florida Board of Bar Examiners.“This court has taken a long-standing position on the admissions process that lawyers who seek to practice on a permanent, not a temporary, basis should be fit,” Yanchunis said. “That is the obligation here: that if you want to practice on a permanent or regular basis, that you take the bar exam.”He added, in response to a question, that the Bar did not distinguish between trials and arbitrations, and did not favor an exception for firms that specialize in certain types of cases, such as personal injury work for a certain product or securities work on one type of case. That, he said, would be ambiguous and hard to define, and if a lawyer got 100 such cases in Florida, he or she would in effect have a regular Florida practice.The only distinction in the rule is for international arbitration. Jose Astigarraga, representing the Bar’s International Law Section, said that was justified. Those cases, he said, are in Florida only because it is a convenient place to meet for an arbitration, and the questions do not involve Florida law, companies, or parties.“This is more dealing with hotel rooms than the practice of law,” he said.Miami attorney Steve Maher, representing the Rules of Judicial Administration Committee and the Bar’s Business Law Section, said the three-case limit per 365-day period was arbitrary and unfair. He noted under the rule when a demand for arbitration was filed, that would count as one case.“The only question that we are fighting about here is what is the general practice of law,” he said. “What they are saying is three strikes and you are out.. . . What if it is only three demands for arbitration that, as soon as the demands are filed, the case is settled?”Maher advocated the ABA language which did not set a number of cases, but provided that lawyers could not have a general practice in a state without being licensed there.Miami attorney Kathy Klock, representing the Security Industry Association Arbitration Committee, contended that arbitration is different from court trials because of different procedural rules and that the three-case limit was therefore wrong.“What we oppose is the three appearance limit because it doesn’t have a rational basis,” Klock said. She added that because the out-of-state counsel must register with the Bar, it will have a handle if an attorney’s practice is temporary or becoming a general practice that would trigger Bar admission requirements.The National Association for the Advancement of Multijurisdiction Practice was represented by Joseph R. Giannini who agreed with Maher that the ABA language on temporary and general practices should be used. He also called for eliminating the requirement of taking the bar exam for out-of-state lawyers who have been admitted to their home jurisdictions for four years without a disciplinary problem.He did say those lawyers should still have to pass a background and character investigation.Clearwater attorney Stephen Krosschell, a plaintiff’s security attorney representing himself and his firm, argued the three-case limit was impractical in some types of arbitration cases. He noted in one case he went to arbitration on a scam by a Florida company and was the only attorney who did that work, representing plaintiffs from around the country.“It wasn’t a case of getting the best lawyer; it was a question of getting a lawyer,” he said, noting if an out-of-state attorney had been taking those cases, the proposed rules might have inhibited Florida residents from getting representation.Krosschell also said arbitration cases are different and hence should have a broader scope for allowing outside attorneys to take cases. The main difference is the Florida rules of procedure don’t apply, and most state security laws are similar.“It is. . . way more important to be more familiar with the arbitration rules and with the federal securities law and familiar with the Securities and Exchange Commission pronouncements than it is to know the individual states’ laws, which are basically the same everywhere,” he said.A video of the oral arguments as well as a transcript can be found on the Supreme Court’s Web site at www.floridasupremecourt.org. MJP debate focuses on pro hac vice ruleslast_img

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