The American Bar Association's midyear meeting has concluded with the association adopting several new policies recommended by its Commission on Ethics 20/20.
The commission was created in 2009 to perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments. North Dakota Chief Justice Gerald VandeWalle has been a member of the commission since its inception.
The ABA's 560-member House of Delegates met Feb. 11 and approved four resolutions from the commission:
Resolution 107A amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to permit limited practice authority for foreign lawyers to serve as in-house counsel in the United States, but not advise on the law of a U.S. jurisdiction except in consultation with a U.S.-licensed lawyer.
Resolution 107B provides a mechanism to implement the limited practice authority in Resolution 107A through amendments to the 2008 Model Rule for Registration of In-House Counsel. Resolution 107B contains additional restrictions on the foreign in-house lawyer's scope of practice as well as added requirements, including payment of bar dues, payment into the client protection fund, fulfillment of continuing legal education requirements and notification to disciplinary counsel.
Resolution 107C amends the Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited, temporary and supervised practice authority to foreign lawyers to appear in U.S. courts, consistent with the rules of the U.S. Supreme Court, numerous federal courts and at least 15 U.S. states.
Resolution 107D adds language to Model Rule 8.5 of the Model Rules of Professional Conduct concerning choice of law, to allow lawyers and clients to specify a particular jurisdiction's conflict of interest rules for purposes of determining the “predominant effect” of a lawyer's conduct.
Commenting on the commission's resolutions, ABA President Laurel Bellows said that “the ABA is responding to the globalization of our profession. Across the country — from Main Street lawyers to global firms — the legal profession increasingly requires the expertise of foreign lawyers to advise their clients on the appropriate country laws.”
The ABA's latest action follows up on its approval of several other 20/20 commission proposals at the August 2012 meeting. These earlier proposals dealt with confidentiality while using technology, using technology for marketing, outsourcing, and enhancing lawyer mobility.
The 20/20 commission is co-chaired by Jamie S. Gorelick, a partner at WilmerHale in Washington, D.C., and Michael Traynor, is president emeritus and chair of the Council of the American Law Institute.
February 12, 2013