Multijurisdictional Practice
By Jon Duckstad

Just as politicians best serve by understanding all politics are local, Bar leaders need to understand the big issues from the local perspective.

Pat Costello is truly a small-town lawyer.  Together with two partners he practices in Lakefield, a southwestern Minnesota town at the geographic center of Jackson County.  The state of Iowa borders Jackson County on the south and 75 miles west of Lakefield lies South Dakota.

Law practice for the firm of Muir, Costello & Carlson includes significant real estate and probate work, performing city attorney duties for several nearby towns, volunteering for legal aid, and providing leadership for the local district bar association. 

While much of the client base is drawn from among the 11,655 residents of Jackson County, family, work, and business connections frequently cross state lines in this remote, rural area.  Whether the work involves estate planning, business incorporation, real estate or family law, it likely involves the law of several jurisdictions.  One of Pat’s clients is a farmer whose farm is divided by the Iowa state line.

Pat’s location and experience put him in the middle of one of the major issues facing the legal profession at the dawn of the 21st century: multijurisdictional practice (MJP). Lawyers are licensed to practice law by the states.  Each state is responsible for ensuring the protection of the public by licensing only those lawyers who are competent and possess the fitness and character to practice law. Increasingly, lawyers and nonlawyers have argued that clients’ needs and lawyers’ practices have changed in ways that strain the current system for regulating lawyers.  The seminal case on this topic is Birbrower et al. v. Superior Court of Santa Clara County, wherein New York lawyers representing a California corporate client in connection with a California arbitration were barred from recovering their legal fees on grounds that they had violated California’s Unauthorized Practice of Law statute.

The states and the American Bar Association are struggling to maintain adequate and effective regulation of the practice of law while staying in step with national and global trends that transcend state boundaries.  Current solutions to these problems vary. A few states have formed regional compacts whereby lawyers licensed in one state can practice in others; a few states allow lawyers to practice temporarily; and others have amended their UPL statutes to address the problem. 

The ABA will be debating MJP issues at its annual meeting in August.  The ABA’s Commission on Multidisciplinary Practice is recommending changes to Model Rule 5.5 that would make it more permissive of multijurisdictional practice, especially temporary work that arises out of or is reasonably related to the lawyer’s home state practice.

Within Minnesota, this issue will be discussed as part of our look at the ABA’s rewrite of the Model Rules of Professional Conduct.  We have a task force that will review the entire new Model Code and report back in June of 2003. 

And how does Pat Costello handle this problem?  He is licensed to practice in both Minnesota and Iowa.

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JON DUCKSTAD is president of the Minnesota State Bar Association.  This month he visits Lakefield, MN, to visit attorney Pat Costello.