LAW WITH NO BORDERS: UNAUTHORIZED PRACTICE OF …

1 LAW with NO BORDERS: UNAUTHORIZED PRACTICE OF LAWIN THE MULTIJURISDICTIONAL AGELAURA M. FRANZEAkin, Gump, Strauss, Hauer & Feld, Pacific AvenueSuite 4100 Dallas, Texas 75201 ADVANCED EMPLOYMENT LAW COURSE 2002 January 24-25, 2002 Houston, TexasCHAPTER 12 LAURA M. FRANZEAkin, Gump, Strauss & Hauer & Feld, Pacific Avenue, Suite 4100 Dallas, TX 75201214 969-2779 FAX: 214 969-4248 BIOGRAPHICAL INFORMATIONEDUCATIONT hiel College, Greenville, Pennsylvania ( , summa cum laude, 1976)Duke University School of Law ( , 1979)PROFESSIONAL ACTIVITIESP artner, Akin, Gump, Strauss, Hauer & Feld, - Dallas - Head of Labor SectionBoard Certified, Labor and Employment Law (since 1984)Past Chair of the Dallas Bar Association Employment Law Section (1993-present)Past-President, Dallas Area Labor and Employment Law Group (1986-87)Advanced Labor Law Committee, State Bar of Texas (1993-present)Member, Fellows of the Dallas Bar Association (1994-present)Vice Chair, Dallas AIDS Commission Legal/Ethical Task Force (1988)Member, College of the State Bar of Texas (since 1991)

2 Member, Pro Bono College of the State Bar of Texas (since 1996)Member, Leadership Dallas (1996-97)Legal commentator on employment and civil rights matters on KXAS TV Channel 5 Dallas/Fort Worth Local NBC AffiliateLAW RELATED PUBLICATIONS, ACADEMIC APPOINTMENTS AND HONORSA ppears in BEST LAWYERS IN AMERICA, all editions since 1995, and in numerousWHO'S WHO, editionsEditor and Chief Author of TEXAS EMPLOYMENT LAW, published by James Publishing (1998,updated through 2001)Author, PRIVACY IN THE WORKPLACE ANSWER BOOK, to be published by Aspen Law &Business in 2002 General Editor/Author, EMPLOYMENT ISSUES FOR TECHNOLOGY COMPANIES, to be published byLaw Journal Press in 2002 Author, Certification of Employment Discrimination Class Actions under Civil Rights Act of 1991,Washington Legal Foundation (March, 2000)Author, Costly Discrimination, Texas Lawyer (July 12, 1999)Author, The Linda Tripp Phenomenon, Texas Lawyer (February 12, 1999)Author, Temp Work May Lead to Long-Term Problems, Texas Lawyer (June 1, 1998)Author, Joe s Stone Crab Case, Texas Lawyer (1998)Author, Employers Hiring practices and Disparate Impact Analysis.

3 The Case of EEOC s Stone Crab, The Washington Legal Foundation (April, 1998)Author, Not Ready for Prime Time, Texas Lawyer (December 15, 1997)Author, The New Sex Discrimination Issues: Funneling, Shoulder Tapping and the InterestDefense, State Bar of Texas (1996)278940/2 law with no borders : UNAUTHORIZED PRACTICE Of Law In The Multijurisdictional AgeChapter 12iTABLE OF OF A MULTIJURISDICTIONAL the PRACTICE of , Montalbano, Condon & Frank, v. Superior Court, 949 1 ( ).. Recent Cases Impacting UPL of Condon v. McHenry, 76 Cal. Rptr. 2d 922 (Cal. Ct. App. 1998).. & Co., Inc. v. Steel Eng g and Erection, Inc., 951 487 (Haw. 1998).. of Law Most Likely to be Impacted by UPL Litigation and the Rules for Admission Pro Hac for In-House for Committing MODEL RULES ADDRESSING UPL IN A MULTIJURISDICTIONAL Commission on Multijurisdictional judicial licensing and regulation of lawyers should be a general rule, attorneys licensed in another United States jurisdiction shouldnot be guilty of UPL by rendering legal services on a temporary basis in harbors for out-of-state harbors for in-house of a model admission on motion of a model state pro hac vice rule for PRACTICE before state courts andadministrative of an ABA Coordinating Committee on Multijurisdictional (Third)

4 Of the Law Governing OF TECHNOLOGY ON THE UPL Computer Programs and and Law Firm with No Borders: UNAUTHORIZED PRACTICE Of Law In The Multijurisdictional AgeChapter 121 law with no borders : UNAUTHORIZED PRACTICEOF LAW IN THE MULTIJURISDICTIONAL AGEI. INTRODUCTIONThe PRACTICE of law is primarily regulated bythe states. Unfortunately, many of the states definitions of the PRACTICE of law and theunauthorized PRACTICE of law ( UPL ) areoutdated and do not protect attorneys engaged inmultijurisdictional practices . This paper discussesthe areas practitioners should be aware of to avoidUPL COMPLEXITY OF AMULTIJURISDICTIONAL PRACTICEV irtually everyone agrees that employment-related litigation has exploded in the last twodecades.

5 According to some reports, more thantwenty-five percent of the nation s civil docketinvolves workplace disputes. And no wonder,virtually any employment decision --from hiring totermination and everything in between-- canbecome the subject of a potential lawsuit. For themulti-jurisdictional employer, discriminationavoidance has always made consistency of policyimportant, but that importance has been increasedexponentially with work-sharing aspects of theinternet, the resulting increased communicationsamong plaintiffs lawyers and local unions indifferent parts of the country, and the increasedease in gathering information on the workforce inthe information age.

6 Nationwide employers, suchas Wal-Mart, have found that positions taken inlitigation in one part of the country directly impactcases thousands of miles away. Moreover, newtechnology has made nearly every major employergrist for the chat room on specialized anti-employer or industry websites, overshadowing thetraditional water cooler exchange of coordination of labor and employmentlitigation and policy has become essential for themultijurisdictional employer, attorneys for suchcompanies continue to be bound by outdatedexclusionary PRACTICE provisions in at least 49states, raising the specter of an unauthorizedpractice of law ( UPL ) violation wheneverlawyers cross state lines literally and figuratively-in representing their clients.

7 The unauthorizedpractice of law rules have traditionally beenapplied to individuals who are not licensed in anyjurisdiction. However, more and more frequently,these rules have been applied to lawyers who giveadvice and counsel outside of the borders of thestate or states in which they hold a issue is seldom a problem for litigatorssince a lawyer who is licensed to PRACTICE in onestate is generally allowed to appear before thecourt of another state with permission of the court,or pro hac vice. But for the transactionalattorney, or for the attorney who practices non-traditional litigation, the issue is less clear. Sincelabor and employment attorneys are both litigatorsand transactional attorneys, the issue takes centerstage within our PRACTICE .

8 The employmentattorney counsels, negotiates, investigates, andpursues strategy on the restructuring of theworkforce. Employment lawyers also representtheir clients before governmental agencies likethe NLRB, OSHA, DOL, and their statecounterparts outside of traditional state andfederal courts. Increasingly, employment lawyersare also called to participate in alternative disputeresolution proceedings such as arbitration,conciliation, and mediation. Each of these facetsof employment law representation may raiseethical issues when the lawyer engages in multi-jurisdictional PRACTICE . Many states place anemphasis on where the attorney is physicallylocated when giving advice.

9 Therefore, the use ofe-mail and the internet in dissemination of legaladvice raises its own multijurisdictional PRACTICE hasbecome the norm, state UPL provisions make nodistinction between work performed by non-lawyers versus out-of-state lawyers. And whileMaryland, Michigan, Virginia, and the District ofColumbia have modernized their rules somewhat,the vast majority of states adhere to rules bettersuited to a slower age. The following provides anoverview of the current status of UPLjurisprudence in the United States, discussesimportant cases weighing in on this issue, andassesses the potential impact of computertechnology on the future formation of new UPLrules and with No Borders: UNAUTHORIZED PRACTICE Of Law In The Multijurisdictional AgeChapter DALLAS 532092 v22A.

10 Defining the PRACTICE of LawThe PRACTICE of law is primarily regulated bythe states. Each state has its own rules andprocedures for gaining admittance to the bar, aswell as its own definitions of what constitutes theunauthorized PRACTICE of law. Moreover, thestates definitions of what encompasses thepractice of law and the UNAUTHORIZED PRACTICE oflaw are equally diverse. (See Appendix A for alisting of state statutes). For example, in Texas,the PRACTICE of law is defined as:the preparation of a pleading or otherdocument incident to an action or specialproceeding or the management of the actionor proceeding on behalf of a client before ajudge in court as well as a service renderedout of court, including the giving of advice orthe rendering of any service requiring the useof legal skill or knowledge, such as preparinga will, contract, or other instrument, the legaleffect of which under the facts andconclusions involved must be carefullydetermined.