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Changes help out-of-state lawyers

Rhode Island has had the reputation of being overly restrictive on attorneys who are not licensed here.

Monday, January 12, 2004

BY EDWARD FITZPATRICK
Providence Journal Staff Writer

PROVIDENCE -- The state Supreme Court has taken several steps that will make it easier for out-of-state lawyers to practice in Rhode Island.

Lawyers who served on a study group praised the changes but said the barriers should be lowered further because the practice of law is becoming more regional and national in scope.

The issue first arose during a 2001 controversy in which the Supreme Court refused to give a Boston lawyer permission to work on an Ethics Commission investigation.

In a separate decision later that year, the high court asserted its "sole authority" over such requests, and it issued temporary rules imposing a $150 fee on each request.

A study group of lawyers and judges called the $150 fee "unreasonable" and suggested that lower courts be allowed to handle applications from out-of-state lawyers. The Supreme Court followed many -- but not all -- of the group's recommendations and made the temporary rules final in a Nov. 21 order.

While the national trend has been to liberally allow out-of-state lawyers to work in states where they're not licensed, Rhode Island has been accused of bucking that trend by becoming stricter.

"Our brethren up north and out west were looking at us as overly protective," said lawyer Michael A. St. Pierre, a study-group member. "I'm happy to see that barrier come down." Still, he said, "I think we have a ways to go."

Now, Rhode Island is only "slightly more difficult" for out-of-state lawyers than other states, said lawyer Deming E. Sherman, another study group member. "I'm delighted with what they've done," he said.

Supreme Court Chief Justice Frank J. Williams said the idea that Rhode Island has been overly strict on out-of-state lawyers is a "false perception."

Rhode Island courts have approved 666 of the 682 applications they've received over the past three years from out-of-state lawyers, marking a 98-percent approval rate. Williams said past problems, including the Ethics Commission case, involved out-of-state lawyers who began practicing in Rhode Island before they received permission.

"The issue is not keeping people out," Williams said. "It's that the Supreme Court is responsible for lawyer discipline and conduct. We owe that to the citizens we serve. If the rules were loose, anyone could come in, and if they made a terrible judgment, how would we get jurisdiction over them?"

Attention focused on out-of-state lawyers in the fall when U.S. District Judge Mary M. Lisi tossed O.J. Simpson lawyer Barry C. Scheck and his New York associate, Nick Brustin, off the civil case brought by the mother of slain Providence police Sgt. Cornel Young Jr.

But that was in federal court, and the new Supreme Court rules do not apply to federal courts, which have their own regulations for out-of-state lawyers.

Sherman said Rhode Island remains somewhat more restrictive than other states because, under the new rules, out-of-state lawyers cannot appear more than three times within the preceding five years.

"I just think it's an unnecessary restriction," Sherman said. "I could understand 50 or 25 times in five years, but three times in five years -- that's not a lot. I've been in other states three times in five years, and I don't consider myself a member of those bars."

Sherman said judges should be allowed to determine where to draw the line. But Williams said uniformity is important so that different judges don't draw the line in different places. He said lawyers can always appeal to the Supreme Court.

"We think three times in five years is fair," Williams said. "If you are going to come into the state that often, take the Rhode Island portion of the bar exam."

The study group called the $150 fee "unreasonable," saying, "it is not cost-related and is unduly restrictive. It is also out of line with federal court practice and practice in many other states." The study group recommended that no fee be charged unless a new court file is opened, in which case it recommended a $50 fee.

The Supreme Court kept the fee at $150 but ruled that no fee is necessary if a case is already pending. Williams described that change as a "big break," saying it means that most out-of-state lawyers won't have to pay a fee.

Under the new rules, the Supreme Court delegated the authority to approve out-of-state lawyers to lower courts such as the District Court, Family Court and Workers' Compensation Court. Superior Court already had that authority in criminal cases.

Williams said that change will make it easier for lawyers to apply to practice in Rhode Island, and St. Pierre said the change will ease the administrative burden on the Supreme Court.

The high court also changed the rules for in-house lawyers employed by companies with offices in Rhode Island. In many cases, those lawyers are not members of the Rhode Island bar. But now, rather than having to take the Rhode Island bar exam, in-house counsel can simply register with the Supreme Court. They are still bound by ethics rules and continuing legal-education rules.

Sherman said limits on out-of-state lawyers are being eased across the country. "I think the practice of law is becoming less local and more national and regional," he said. "Clients have interests in various parts of the country. It's the nature of the economy."

St. Pierre agreed, saying, "We are a global society. Transactions take place across state and national borders."

And that is being reflected in rules for out-of-state lawyers, St. Pierre said. For example, the states of Washington, Oregon and Idaho have an agreement whereby lawyers who pass the bar in one state can practice in all threes, and he said the New England Bar Association has discussed a similar regional arrangement.