An Update on Multijurisdictional Practice and ADR - Chapter 22 - AAA Handbook on Arbitration Practice - Second Edition
Author(s):
Bruce E. Meyerson
Page Count:
20 pages
Media Description:
1 PDF Download
Published:
December, 2015
Author Detail:
Bruce E. Meyerson, a mediator and arbitrator in Phoenix, Arizona, serves on the American Arbitration Association's roster of neutrals and is a member of the Association’s Board of Directors. He formerly served as a Judge on the Arizona Court of Appeals and was General Counsel of Arizona State University. He is a past chair of the American Bar Association Section of Dispute Resolution.
Description:
Originally from:
AAA Handbook on Arbitration Practice - Second Edition
Preview Page
CHAPTER 22
AN UPDATE ON MULTIJURISDICTIONAL
PRACTICE AND ADR
Bruce E. Meyerson
I. Introduction
As more and more national and international businesses expand their
use of mediation and arbitration, attorneys representing these entities find
themselves traveling from state to state representing clients in ADR
proceedings.
In the past, state regulation of the practice of law had not kept up
with this rapidly changing expansion in the use of ADR proceedings by
companies doing business throughout the United States. Most states were
slow to make their own legal ethics rules more flexible in permitting outof-
state attorneys to appear intermittently on behalf of clients in
mediation and arbitration without becoming licensed in those
jurisdictions.1 To remedy this situation, the American Bar Association
(“ABA”) made important additions to its Model Rules of Professional
Conduct (“Model Rules”) for states to consider concerning the
multijurisdictional practice of law. This article concerns only one aspect
of the multijurisdictional practice of law—the rules that apply when a
lawyer admitted to practice in one state, occasionally appears in another
state to represent a party in a private arbitration (as distinguished from a
court-annexed arbitration).
II. Model Rule 5.5(c)(3)
The highest court in a jurisdiction regulates the practice of law in
that jurisdiction. Pro hac vice rules permit lawyers to temporarily
practice before courts in states where they are not admitted but with few
exceptions noted later in this article, these rules do not apply to attorneys
representing parties in private arbitration. Thus, courts have granted pro
hac vice admission to lawyers in individual court cases for some time,
but no comparable procedure typically exists in private arbitration.
Disturbing to many was the reaction by some courts to attorneys who
travel out of their home jurisdiction to represent clients in arbitration in
other states. For example, in 2003, the Florida Supreme Court, in Florida
Bar v. Rapoport,2 enjoined Mr. Rapoport, a lawyer licensed to practice in
the District of Columbia, from representing parties in securities
arbitrations in Florida. Not surprisingly, relying upon an earlier
decision,3 the court found that giving legal advice and performing the
traditional tasks of lawyers in arbitration proceedings was “the practice
of law.” Rapoport’s situation, however, was not particularly sympathetic
as he actually operated a law practice in Florida and advertised in at least
one Florida newspaper.
The Florida decision followed by five years the ruling of the
California Supreme Court in Birbrower, Montalbano, Condon & Frank,
P.C. v. Superior Court.4 That decision involved a fee dispute in which an
out-of-state law firm, in defending against a claim it had committed legal