The American Bar Association plays a key role in setting a policy framework that States look to when regulating the conduct of lawyers.  The current Ethics commission debates have reached an impasse on the topic of virtual practice.  See  20120619_draft_release_for_comment_rule_5_5_comment_4_virtual_practice .

But as any tax lawyer or any international business lawyer will tell you,  jurisdictional boundaries for the practice of law are problematic when either your subject matter or your clients’ business crosses state boundaries.  Tax lawyers advise on the consequences of 50 state tax laws and federal tax law routinely.  International business lawyers structure global transactions taking into account the laws of multiple jurisdictions.  I am not familiar with any state’s bar counsel questioning whether any of these lawyers are committing unauthorized practice of law violations in other jurisdictions.

So fast forward to the 21st century, any both lawyers and clients are operating web sites that are by their very nature multi-jurisdictional.  Clients aren’t regulated as lawyers are – so they have no problem selling across borders.  But, what about their lawyers?  What if a Massachusetts lawyer living in New Hampshire develops a strong expertise in e-commerce law and attracts a national following?  Of course, the reason she has that national following is because she has a virtual practice, operates a website that has podcasts, free downloads of e-commerce strategies (all with the usual disclaimers and that a lawyer-client relationship can only be established by a written fee agreement);  but if you look at the ABA Ethic Commission’s approach to virtual legal practice, they seem stuck on a 20th century notion of “systematic and continuous presence” in a jurisdiction to determine whether our hypothetical Massachusetts lawyer is practicing outside the jurisdiction where she is licensed.

The reality is that a majority of lawyers practice in solo and small firms, with their partners are licensed to  practice in one or just a couple of states.  Of course, large law firms practice nationally, either with partners licensed to practice in nearly every state, or, are part of legal networks that have partners that fill in the missing states.  It certainly seems odd that when solo and small firm lawyers are struggling economically, and, have access to cheap and innovative technology that opens up vistas, that the bar associations which set policy, chill innovation.  Small firm lawyers can not afford to fight objections by bar counsel.  Nor, are legal malpractice insurers offering policies which open up innovative practices.

Peter Erenhaft, a DC international lawyer, has been making the argument that lawyers should be able to practice globally with one license – which, of course, is how the European Union operates within its jurisdiction.  His comment to the ABA Commission can be seen here Ehrenhaft on virtual practice

What do you think?