Proposal to Lift Geographic Limits on Practice of Law – Implications for ESI

The ABA recently reported on a proposal that Lawyers should be able to practice law in any state, says group urging ABA model rule change (abajournal.com). The proposal appears especially well-suited to ESI.[1]

The author, Debra Cassens Weiss, reports that “[t]he proposed rule change by the Association of Professional Responsibility Lawyers emphasizes the concept of clients’ right to choose counsel ‘and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries….’”  Ms. Weiss writes that ‘[t]he report adds that reciprocity rules that allow lawyers to practice in additional states aren’t ‘an adequate solution.’ Eleven states don’t offer reciprocity, and those that do offer reciprocity impose burdens, such as a time-in-practice requirement, different standards for continuing legal education and a long wait for approval.”

The APRL letter to the ABA, written by  Brian S.  Faughnan – Lewis Thomason, states:

Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time

Finally, Ms. Weiss’s ABA Journal article states that the ABA is reviewing the letter “and says it is premature to comment.”

While State and local rules and laws may differ from jurisdiction-to-jurisdiction, ESI does not change regardless of its location.  Problems of proportionality, preservation, collection, search, review, privilege, and production  do not differ by location.  Additionally, the ABA has recognized that “[l]awyers increasingly practice law remotely or away from their main office.”  As noted in APRL Comment 1: “This [proposed] rule acknowledges that the practice of law now routinely transcends geographic jurisdictional boundaries. The question of what it means for a lawyer to practice law ‘in’ a jurisdiction has been clouded by advances in technology that facilitate lawyers’ ability to communicate, work, and appear in other jurisdictions…. In modern law practices, lawyers routinely send e-mails, place phone calls, and participate in video calls with clients and other parties in other jurisdictions, rendering the lawyer’s physical location irrelevant to the lawyer’s capacity to provide legal services. ”

The cover letter to the APRL proposal states:  “I would ask that you help disseminate these materials to the appropriate channels within the ABA.” [emphasis added].

ESI does not have geographic boundaries, nor should attorneys be limited by them.  The APRL report concludes:

Geographic limitations on a lawyer’s provision of services long accepted by the legal profession in the name of client protection often deprive clients of ever having an opportunity to exercise a truly full and free “choice” of counsel. These geographic restrictions exist even if lawyer and client are both willing to enter into the engagement, oftentimes already having an existing professional relationship. Geographic limitations also make no accommodation for the idea that the relationship may benefit from both the level of trust that the client has in the lawyer as the “first choice” as well as any existing knowledge the lawyer has about the client, including relevant goals, priorities, tendencies, and communication style.

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[1] “ESI” is electronically stored information.