Professional Responsibility Bill Simon ALLOCATION OF REGULATORY AUTHORITY OVER THE PROFESSION

I. Within State a. The Primacy of the Judiciary - "Inherent Power" Doctrine Idaho State Bar v. Idaho Public Utilities Commission (Idaho 1981) (striking down statute authorizing lay representation before commission); Hustedt v. California Workers' Compensation Appeals Board (CA 1981) (striking statute authorizing board to discipline lawyer and non-lawyer claimant representatives). b. Three versions: i. Exclusive: Lloyd & Michel v. Fishinger (Pa. 1992) (striking down statute precluding lawyer negotiation of contingent fee agreement within 15 days of client hospitalization). ii. Comity: CA, Idaho iii. Shared: NY c. Scope - What is the "practice of law"? State Bar of Arizona v. Arizona Land Title & Trust Co. (Arz. 1961) (preparing real estate conveyancing documents constitutes "practice of law") d. Bar Associations i. Voluntary ii. Integrated (Mandatory) Keller v. California State Bar (U.S. 1990) (compulsory dues for "political and ideological expenditures" but not "professional ones" violates First Amendment compulsory speech doctrine). II. Between States a. Jurisdiction and Choice of Law for Disciplinary Purposes: MR 8.5; DR 1-105 b. Where Does Practice Occur? Birbrower, Montalbano, Condon & Frank v. Superior Court .. (Cal. 1998) (representation by New York lawyers of affiliated New York and California corporations in arbitration in San Francisco under contract drafted in New York with California choice-of-law clause is unauthorized practice). Overruled by statute. Ranta v. McCarney (N.D. 1986) (Minnesota lawyer giving federal tax: planning advice from North Dakota office to North Dakota clients sanctioned for unauthorized practice); Gould v. Florida Bar (II th Cir. 2007) (rejecting first amendment challenge to Florida UP law by New York lawyer who advertised from Florida office his availability to handle "New York legal matters only" and "federal administrative law"); ABA Model Rule 5.5'
neb) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the-practice of law; ... (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction. may provide legal services on a temporary basis in this jurisdiction that: . (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's

c. Constitutional Limits on Exclusion In re Griffiths (U.S. 1973) (exclusion of aliens violates equal protection) Piper v. New Hampshire (U.S. 1985) (residence requirement violates privileges and immunities clause) Ford v. Israel (7"h Cir. 1983) (upholding, on minimum rationality scrutiny, rule conditioning pro hac vice representation of criminal defendant on affiliating with local counsel) Tolchin v. State Bar of New Jersey (3d Cir. 1997) (upholding, on minimum rationality scrutiny, New Jersey rule requiring that lawyers practicing in state have an in-state office with work space for each lawyer and staffed by a person able to reach the lawyer during business; the state Supreme Court, after much criticism from New York and Philadelphia lawyers suspended the rule in 2003). Weismueller v. Kosobucki (7th Cir. 2009) (DCC challenge to Wisconsin "diploma privilege" for in-state law school graduates; reversing summary judgment for defendant, court suggest that plaintiffs could prevail by showing that in-state law schools do not devote substantial effort to Wisconsin law). Real Estate Bar Association of Massachusetts v. National Real Estate Information Services (D. Mass. 2QQ9)(holding that state's application of unauthorized practice statute to out-of-state non-lawyer provider of "real estate closing services" violates Dormant Commerce Clause; requiring in-state admission for services that do not require complex legal judgment excessively burdens commerce). III. Federal/State a. No "inherent power" doctrine limits Congressional power b. Federal courts regulate through local rules that typically incorporate rules of the state, e.g, S.D.N.Y. Local Rule 1.5 (incorporating NYRPC); S.D.Cal. Local Rule 8Ab (incorporating CRPC as "non-exhaustive of the standards of professional conduct", referring to ABAMRPC as pertinent, and forbidding conduct that "degrades or impugns the integrity of the court" or "interferes with the administration of justice") c. Sperry v. Florida State Bar (U.S. 1963) (Patent Office authorization of non-lawyer practice pre-empts inconsistent state law) . d. McDade amendment: 28 U.S.C. 530B: "An attorney for the [federal] government shall be subject to state laws and rules governing attorneys in each state where the lawyer practices to the same extent and in the same manner as other attorneys in that state:' IV. Hypothetical The Department of Justice has enacted a regulation authorizing federal prosecutors to speak to defendants in pending cases without the knowledge or consent of counsel if the defendant requests them to do so and makes an informed waiver of the right to have counsel present. The Pennsylvania legislature has passed the following statute: "No federal prosecutor shall speak to a suspect in a criminal investigation or a defendant in a pending case except in the presence of such defendant's counsel." X is a federal prosecutor and a member of the Pennsylvania, Virginia, and D.C. bars. He principally practices in D.C. In the course of an investigation in Virginia, he speaks to a suspect, at the suspect's request, without seeking permission from counsel. Is she subject to discipline under the Pennsylvania statute?

practice in ajurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or . (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in ajurisdiction in which the lawyer is admitted to practice."