After impassioned arguments by proponents and opponents, the ABA's House of Delegates adopted the recommendation of the Ethics 20/20 Commission to adopt a model Rule on Practice Pending Admission, and amend the black letter and Comment to Rule 5.5 of the ABA Model Rules of Professional Conduct to enable lawyers to practice in a new jurisdiction for one year while the lawyer actively pursues admission through one of the procedures that the jurisdiction authorizes. Here's the rationale:
This Rule recognizes that a lawyer admitted in another jurisdiction may need to relocate to or commence practice in this jurisdiction, sometimes on short notice. The admissions process can take considerable time, thus placing a lawyer at risk of engaging in the unauthorized practice of law and leaving the lawyer’s clients without the benefit of their chosen counsel. This Rule closes this gap by authorizing the lawyer to practice in this jurisdiction for a limited period of time, up to 365 days, subject to restrictions, while the lawyer diligently seeks admission. The practice authority provided pursuant to this Rule commences immediately upon the lawyer’s establishment of an office or other systematic and continuous presence for the practice of law.
The Commission further explained:
Technological and economic changes have produced an increase in cross-border practice, revealing an important gap in the practice authority granted by Model Rule 5.5(d). That gap affects an increasing number of lawyers who have found it necessary to quickly establish a practice in a jurisdiction where they are not otherwise admitted. For example, a lawyer may need to relocate in order to accommodate the needs of a client who has moved to a new jurisdiction. Or the lawyer may receive a job opportunity in a jurisdiction other than the jurisdiction of original licensure or be transferred to another jurisdiction, often requiring relocation within a very short timeframe. Lawyers also frequently have to relocate due to changes in personal circumstances, such as the relocation of a spouse or domestic partner due to military deployment or other professional opportunities. In sum, lawyers increasingly need to relocate during their careers, often more than once and frequently without much notice.
The Commission found and heard that, despite the increasing need to relocate, the admissions process for these lawyers can take considerable time. For example, the admission by motion process requires an applicant to complete and submit a lengthy application that requires personal and professional information that can take weeks or months to compile. The process typically requires a lawyer to obtain proof of licensure from the lawyer’s home jurisdiction, submit evidence of a passing score on the Multistate Professional Responsibility Examination, and accumulate substantial personal and professional information in order to satisfy the character and fitness requirements of the jurisdiction. If the lawyer does not qualify for admission by motion (e.g., the lawyer has not satisfied the durational practice requirements), the lawyer will need to sit for the jurisdiction’s bar examination, which is administered only twice per year.
The Commission found that this time consuming process can adversely affect lawyers’ ability to represent their existing clients effectively and can have adverse consequences on lawyers’ careers in a marketplace that requires an increasing amount of cross-border practice. Thus, the Commission concluded that, assuming procedural safeguards are put in place, these relocating lawyers should be permitted to establish a continuous and systematic presence for the practice of law in the new jurisdiction for a limited time (not to exceed 365 days) while diligently pursuing formal admission. The proposed new standalone Model Rule on Practice Pending Admission, if adopted, would authorize this form of practice.
