Girardi Slapdown Shows How Federal Courts Apply Sanctions Analysis Against Attorneys

Ninth Circuit Sanctions Lawyers in High-Profile Case

Another in Our Series of Hinshaw Lawyers for the Profession® Alerts

In re Girardi, ___ F.3d ___, 2010 WL 2735731 (2010)

Brief Summary
Relying on federal statutes and rules of professional conduct, the U.S. Court of Appeals for the Ninth Circuit sanctioned a group of attorneys who, in seeking to enforce a foreign judgment, made false statements to the court. The sanctions included monetary sanctions of $390,000 and ranged from a reprimand to a six-month suspension depending on the mental state, experience, and degree of involvement of each attorney.

Complete Summary
Four lawyers represented a group of Nicaraguan plaintiffs in an action against various U.S. entities. Some of the defendants were misidentified in the complaint, and this error was reflected in the Nicaraguan court’s $489 million default judgment and writ of execution against defendants. The attorneys later sought to enforce the judgment in California federal court relying on a notary affidavit which translated the writ of execution. The notary affidavit, however, was neither a perfect nor complete translation. Among other things, it altered the names of the defendants to correctly identify them. The lawyers maintained, in both the district court and the appellate court, that the notary affidavit was the actual judgment/writ of execution rather than a translation. Defendants moved for sanctions based on the filing of a frivolous appeal and making of false statements. The Ninth Circuit issued an order to show cause why the attorneys should not be sanctioned, and appointed a Special Master to oversee further proceedings.

Following a four-day trial, the Special Master found that the lawyers had vexatiously multiplied the proceeding by recklessly and intentionally misleading the court. He therefore recommended sanctions totalling $390,000, pursuant to 28 U.S.C. §§ 1912 and 1927, and Fed. R. App. P. 38. That sanction was designed to reimburse defendants. The Ninth Circuit ultimately adopted the Special Master’s findings of fact and conclusions of law, and its recommended sanctions.

The Ninth Circuit further sanctioned the lawyers for engaging in “conduct unbecoming a member of the court’s bar” in violation of Fed. R. App. P. 46. In reaching this conclusion, the court relied on both the California and American Bar Association (ABA) Rules of Professional Conduct, as well as the ABA Standards for Imposing Lawyer Sanctions. The court held the lawyers’ conduct clearly violated Rule 46 based on Model Rules 3.1 (lawyer shall not bring a frivolous proceeding), and 3.3 (lawyer shall not knowingly make or fail to correct a false statement made to a tribunal), as well as California Rule 5-200 (lawyer shall not seek to mislead a judge).

In determining the appropriate sanctions, the court reserved the six-month suspensions for conduct that was either knowing, intentional, reckless or willfully blind to the misrepresentations, including failing to satisfy the duty to investigate the legal and factual bases of the claim. The court also issued a public and private reprimand, respectively, to one lawyer whose actions were essentially limited to authorizing the other lawyers to sign his name on briefs, and to another inexperienced attorney who had tried to persuade his colleagues to discontinue the frivolous appeal.

Significance of Opinion
This opinion is a good illustration of how federal sanctions statutes, rules of appellate procedure, and state and model disciplinary rules intersect in the context of monetary and disciplinary sanctions on appeal. In addition, it demonstrates the potentially serious individual consequences for lawyers who make misrepresentations to the court, having failed to make the requisite effort to investigate their claims.

Ediscovery Sanctions Compromise the Attorney-Client Relationship

Our Hinshaw partners Steve Puiszis and Evan Brown author an excellent blog on emerging e discovery issues. These often overlap with ethics and law firm practice management issues of course. Check out their blog at http://blog.hinshawlaw.com/practicalediscovery/

Steve Puiszis recently authored a post of interest to us all which I’ll post part of here:

Ediscovery sanctions drive an ethical wedge in the attorney-client relationship

By Steve Puiszis
Merck Eprova AG v. Gnosis S.P.A., 2010 WL 1631519 (S.D.N.Y. April 20, 2010)

Today’s post involves the sorry tale of a foreign company that failed to properly issue a litigation hold and allowed the deletion of emails to occur after suit was filed. To make matters worse, at an evidentiary hearing, the company’s CEO admitted that certain responsive documents that he felt were immaterial were not produced. The CEO also testified that because the plaintiff’s discovery requests were so disproportionate, he did nothing to preserve documents relating to the manufacture and sale of the product in question. The district court concluded the defendant’s conduct in failing to issue any type of litigation hold amounted to gross negligence and that the defendant’s search for responsive documents fell well below the minimum standard that a reasonably prudent person would use.

*****

While the court’s desire to preserve the integrity of the attorney-client privilege is laudable, its order created an ethical dilemma for defense counsel and potentially drove an ethical wedge into the attorney-client relationship. Unless an attorney and client immediately agree that only one of them is solely responsible for such a sanction, the attorney should carefully evaluate whether Rule 1.7(a) of the Model Rules of Professional Conduct has been triggered. Rule 1.7(a) provides that a lawyer shall not represent a client if the representation involves a “concurrent” conflict of interest. It further explains that a concurrent conflict exists if there is a significant risk that the representation of the client will be materially limited by the personal interest of the lawyer. Comment 8 to Rule 1.7 notes that even when there is no direct adversity, “if a significant risk exists that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests,” a conflict exists. Any lawyer subject to the type of sanction’s order entered in Gnosis would be personally interested in its outcome, and a claim could be made that it would be difficult to give “detached advice” under the circumstances. Thus, the specter of Rule 1.7(a) is arguably triggered by the sanctions order entered in Gnosis.

While this type of potential conflict can be waived by the client, it requires the lawyer to clearly identify and explain the nature of the conflict (in writing) to the client and obtain the client’s informed consent. This requires an explanation of the reasonably foreseeable ways the conflict could have an adverse effect on the client’s interests. Additionally, Model Rule 1.8(a) explains that the client should be informed in writing that the client may seek the advice of independent legal counsel on the transaction and be given a reasonable opportunity to obtain separate counsel to decide if the conflict should be waived. Accordingly, this type of ediscovery sanctions order will likely delay the proceedings and may require the involvement of separate counsel to address the issue.

The Gnosis decision brings into focus two important questions. The first is what should a lawyer do upon learning the client is refusing to follow counsel’s advise on preserving and producing electronically stored information (ESI)? The second is whether in light of the recurring damage being done to the attorney-client relationship as a result of ediscovery sanctions, are amendments to the federal ediscovery rules warranted, or is there a reasonable alternative to attorney sanctions that would adequately insure the attorney fulfills his ediscovery obligations to the client?

Read the rest of the article here — http://blog.hinshawlaw.com/practicalediscovery/2010/04/30/ediscovery-sanctions-drives-an-ethical-wedge-in-the-attorney-client-relationship/#more-762

When Will Access to Confidential Information Limit You in Other Cases?

Federal Circuit Sets Test  When Lawyer Access to Opposing Party Confidential Information May Limit Scope of Attorney Representation

Another in Our Series of Hinshaw Lawyers for the Profession® Alerts

In re Deutsche Bank Trust Co. Americas,___ F.3d___, 2010 WL 2106957 (Fed. Cir. 2010)

Brief Summary
Addressing a matter of first impression, the United States Court of Appeals for the Federal Circuit held that counsel may be barred from prosecuting certain patent applications for a client if that counsel, through patent infringement litigation on other related patents, has access to another party’s confidential information that is relevant to the patent prosecutions.

Complete Summary
Island Intellectual Property LLC (Island) sued petitioners (collectively “Deutsche Bank”) for patent infringement in the Southern District of New York. The litigation centered on three patents and Island concurrently had 19 pending patent applications closely related to them. Deutsche Bank was consequently concerned that Island’s counsel might use confidential information discovered in the infringement litigation for purposes of prosecuting Island’s other applications. Deutsche Bank sought a protective order barring Island’s counsel from prosecuting such applications.

The district court, reviewing a magistrate judge’s order, granted Deutsche Bank this protection as to most of Island’s trial counsel, but imposed a less restrictive protective order on Island’s lead trial counsel. Deutsche Bank petitioned the Federal Circuit for a writ of mandamus with respect to the terms of the protective order related to Island’s lead trial counsel.

Reviewing under an abuse of discretion standard, the Federal Circuit vacated in part and remanded. The court noted that although it normally would not grant mandamus review of a discovery order, it did so in this case because the matter involved an important issue of first impression on which courts have disagreed. The court also held that Federal Circuit law applied, noting the need for uniformity among the federal circuits in patent law.

The court held that the moving party must show that the scope of the protective order sought (e.g., duration, confidential information covered, activities prohibited) reasonably reflects the risk posed by disclosure of the confidential information.

Further, a party seeking an exemption from such an order has two burdens, both of which apply on an individual lawyer-by-lawyer basis. First, the party must show that the attorney does not provide competitive decision-making advice for the client through which counsel could inadvertently disclose the opposing party’s confidential information. The court held that this burden can be met if counsel is only involved in the client’s patent prosecution matters at an “ancillary” or “high-altitude” level, so long as there is a reasonable expectation that the lawyer’s authority or involvement will not change in a relevant way during the tenure of the protective order. The court declined to hold that in-house attorneys, or lawyers involved in patent prosecution are per se involved in competitive decision-making for the client.

Second, a party seeking an exemption from such a protective order must show that the harm it would suffer by being denied its choice of counsel outweighs the potential harm to the opposing party from inadvertent disclosure of its confidential information. The court held that this determination turns on the extent and type of counsel’s representation, the client’s reliance and dependence on that representation, and the potential hardship of retaining new counsel.

The court acknowledged that in some circumstances the factors that make counsel valuable to a client are the same factors that subject counsel to the risk of inadvertently disclosing the opposing party’s confidential information for the client’s benefit.

Significance of Opinion
In reaching its main holding, the court recognized that in some circumstances there is a high risk that counsel may inadvertently use confidential information discovered in litigation to aid a client in other endeavors. Although the “other endeavor” here involved patent application prosecution, the court’s basic reasoning could apply to any of a client’s litigation, non-litigation or business endeavors. The fact-specific nature of the court’s holding indicates more generally that parties seeking to protect confidential information by limiting the scope of opposing counsel’s representation would be well-advised to seek focused, reasonably limited protective orders.

New Jersey Elaborates on Former Client Conflict Disqualifications

New Jersey Supreme Interprets “Substantially Related Matters” Under Former-Client Conflicts Rule

Another in Our Series of Hinshaw Lawyers for the Profession® Alerts

City of Atlantic City v. Trupos, 201 N.J. 447, 992 A.2d 762 (2010)

Brief Summary
The New Jersey Supreme Court held that, for purposes of disqualifying a lawyer based on a former-client conflict, either (1) the lawyer must have received confidential information from the former client that can be used against that client in the current matter, or (2) facts relevant to the former representation must be relevant and material to the current representation.

Complete Summary
A law firm represented Atlantic City in certain real estate tax appeals in 2006 and 2007. The firm discontinued this representation and later represented a number of taxpayers in an appeal of 2009 real estate tax assessments. The city moved to disqualify the law firm under the former-client conflict rule asserting that the firm’s former representation and current representation were substantially related. The New Jersey Supreme Court held that the matters were not substantially related.

For purposes of disqualifying a lawyer — which requires a balance between clients’ right to counsel of their choice and safeguarding the highest professional standards — the Court held that matters are substantially related if:

(1) the lawyer . . . received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

The Court noted that the burden of establishing former-client status rests on the alleged former client, and that once this burden has been met, the burden of production shifts to the lawyer(s) facing disqualification to establish that the matters were not substantially related. But the burden of persuasion on this latter issue remains with the moving party.

The Court held that the city failed to meet its burden of persuasion because it did not point to any potentially harmful confidential information it shared with the law firm, and because the firm’s prior work for the city involved different properties, appraisers and relevant facts. The law firm did participate in the city’s selection of a revaluation company which later participated in the 2009 tax assessments, but the Court held that absent evidence that the firm was privy to substantive information such as that company’s valuation methodology, this fact did not establish that the firm received relevant confidential information during its representation of the city.

Significance of Opinion
This is the first New Jersey case to elaborate on the meaning of “substantially related matters” since the state overhauled its Rules of Professional Conduct in 2004. Unlike some jurisdictions which may focus on whether allegedly related matters involve overlapping issues of law, New Jersey’s test largely focuses on whether the matters are substantially factually related. This test requires more than an appearance of impropriety and more than a mere inference that certain confidential information that could be used adversely was shared during the prior representation. This decision is consistent with cases in other jurisdictions that will not presume that there is an actionable ethical violation without some basis to conclude that there is actual harm or prejudice.

Do You Practice Outside Your Home State? You Can Still Be Sanctioned.

Iowa Supreme Enjoins Out-of-State MJP Attorney for Violations of Iowa Ethics Rules

Another in Our Series of Hinshaw Lawyers for the Profession® Alerts

Iowa Supreme Court Attorney Disciplinary Board v. Carpenter,___N.W.2d ___, 2010 WL 1507633 (Iowa 2010)

An attorney had practiced in Iowa under a state multijurisdictional practice (MJP) rule allowing lawyers licensed in another jurisdiction to handle certain federal law matters. In a case of first impression for the Iowa Supreme Court, the Court used its equitable power to enjoin the attorney from practicing in Iowa under any rule for two years as a result of trust account and other ethics violations.

Complete Summary
An attorney licensed in Minnesota but not in Iowa (the “Accused”) practiced in Iowa pursuant to Iowa Rule of Professional Conduct (IRPC) 32:5.5(d)(2) (Iowa’s federal MJP rule), permitting out of state lawyers to practice in certain federal law matters. The Iowa Supreme Court Attorney Disciplinary Board filed charges against the Accused alleging numerous violations of the IRPCs including accounting and trust account violations. The Accused stipulated to a 30-month suspension with additional conditions for reinstatement.

The Iowa Supreme Court enjoined the Accused from any practice of law in Iowa for two years. In a case of first impression for it, the Court noted that no rules addressed the Court’s power to sanction attorneys practicing in Iowa without an Iowa license, and that certain traditional sanctions such as suspending or revoking an attorney’s license were inapplicable to such attorneys. After looking to other jurisdictions, the Court concluded that it had the authority to fashion equivalent sanctions by virtue of its injunctive and equitable powers. “This authority is clearly necessary for the protection of Iowa citizens[,]” the Court noted.

In determining the appropriate sanction, the Court examined sanctions levied against Iowa-licensed attorneys for similar rule violations, as well as the usual considerations of the Accused’s state of mind, harm to the Accused’s clients, the Accused’s fitness to practice law, and aggravating and mitigating factors. The Court determined from this analysis that the Accused’s conduct normally would justify a two-year suspension. Applying its equitable power, the Court then translated this suspension into an injunction. The Court ordered the Accused to cease and desist from practicing law in Iowa under any law, including IRPC 32:5.5(d)(2), for two years, with conditions for reinstatement.

Significance of Opinion
This opinion demonstrates that lawyers who practice in a state under the authority of an MJP provision are subject to discipline up to and including a prohibition on their practice, even if a state’s disciplinary structure does not contain express authority for such a sanction. The Court here properly focused on protecting Iowa clients and resorted to its inherent equitable authority to provide that protection.

Nonrefundable fees? Not in Missouri, New Opinion States

The Missouri Advisory Committee has issued Formal Opinion 128, which clarifies that Missouri’s ethics rules prohibit lawyers from charging “nonrefundable” fees.

The bottom line: Missouri does not have “nonrefundable” fees. Regardless of whether a representation is complete and the “terminology used to describe the fee, if the ultimate fee is unreasonable, taking into consideration the eight factors listed under Rule 4-1.5(a), the unreasonable portion must be refunded.”

Having established this bottom line, Formal Opinion 128 tackles some of the challenging issues left concerning fixed fees, advance fees, and the like.

The Opinion examines two types of matters where “fixed” or “nonrefundable” fees are frequently used.  It explains that in some circumstances, in particular domestic relations matters, it may be appropriate for a lawyer to charge a reasonable ”intake fee” to reflect that the lawyer will be foregoing the ability to represent other parties in the matter when the lawyer commences representing the client. This fee would be earned upon commencement, and thus would not be accurately described as “nonrefundable” — rather, it would be earned at commencement.

In contrast, Formal Opinion 128 explains, a criminal matter that did not involve such conflict issues likely would not be suitable for an “intake fee.” Thus, if the lawyer was terminated or withdrew shortly after commencing a representation, some of the fee would likely need to be refunded.

Formal Opinion 128 also challenges two long-held principles regarding fees. First, the Opinion rejects that a flat fee is “earned upon receipt for trust account purposes.” Formal Opinion 128 instead advises that, under the present version of Missouri Rule 4-1.15(f), “all flat fees must be deposited into a lawyer trust account and promptly removed when actually earned, similar to prompt removal of earned hourly fees.”

Finally, Formal Opinion 128 discourages the use of “retainer,” noting that the term “has taken on many meanings which are inconsistent with one another and which are confusing to clients.” Instead, the Opinion advises lawyers to use ”use plain language that clients are likely to clearly understand.”

A copy of Formal Opinion 128 is available here: http://www.mo-legal-ethics.org/modules.php?name=News&action=view&id=64&PHPSESSID=f96c1be7f56dc7617efd7c2555ce6517

Another Law Firm Loses Big to Employee Larceny — Is Yours Next?

The EQ has blogged a number of times about employee theft from law firms. Why do lawyers never seem to learn? If you interviewed these firms no doubt you would find intelligent, hard working people shocked that the theft occurred, and they’d probably say something along the cliched lines of “But he/she seemd so nice/trustworthy/loyal/normal”. Stop me if you’ve heard all this before right? But it does not seem to stop.

And if your firm does not have appropriate systems in place to stop it, you might be lucky just to lose a bundle of money. If you lose client account funds, you could be facing a “used-to-be our client” situation, a malpractice suit, or even a disciplinary suit.

The Chicago Sun-Times today reports that the Kelly, Olson, Michod, DeHaan & Richter firm’s ”long-time” office manager wrote 234 checks to herself between 2002 and 2009 totaling nearly $1 million. And she might have escaped detection had she not been on vacation when one of the firm checks bounced!

Here is the link to the story: http://www.suntimes.com/news/metro/2265912,lawfirm-manager-theft-charge-051210.article

Do you have procedures in place so your law firm does not become the next news story like this one?

And a tip: an outside “audit” of your firm’s management procedures and practices will probably serve you better in the long run than doing it yourself. You never know what might happen if someone with something to hide gets to run that review . . .

Ambulance Chasing is (Sort of) OK Again in TX

Federal District Court Strikes Down Texas Criminal Restrictions on Professional Solicitations

Another in Our Series of Hinshaw Lawyers for the Profession® Alerts

McKinley and Villasana v. Abbott, A-01-CA-643-LY (W.D. Tex. Mar. 25, 2010)

Brief Summary
The United States District Court for the Western District of Texas permanently enjoined enforcement of provisions of the Texas Penal Code which prohibited legal and medical professionals from soliciting individuals who were involved in accidents, arrested, or named as defendants in civil lawsuits for a 30-day period.

Complete Summary
In 1993, Texas prohibited certain licensed professionals (including attorneys, chiropractors, physicians, surgeons and private investigators) from sending solicitation letters to certain individuals who were involved in accidents, arrested or named as defendants in civil lawsuits for a 30-day period. In 2009, the Texas Assembly amended the law to impose criminal sanctions for such solicitations. The U.S. District Court for the Western District of Texas permanently enjoined the enforcement of the law.

Two professionals challenged the law as an unconstitutional limitation on commercial speech. The standard of intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), requires that laws regulating truthful and non-deceptive commercial speech must directly and materially advance a substantial state interest and be narrowly drawn.

A criminal defense attorney challenged the provisions that prohibited lawyers licensed in Texas from making solicitations to those who were arrested or served with a summons within 30 days of arrest or issuance of summons. The court focused on the potential harm to the individuals to whom solicitation was prohibited. It noted that a criminal defendant has a right to a speedy trial and the right to counsel, both of which require quick access to representation. The court also contrasted the privacy interests of accident victims with persons who were recently charged or arrested for a crime, finding that the latter do not possess the same need for privacy protection. Finally, the court found that the criminal consequences imposed on soliciting attorneys did not directly or materially advance a substantial state interest and that the law was not narrowly drawn under the Central Hudson test.

The second plaintiff, a chiropractor, challenged the provisions that prohibited medical professionals from making solicitations to accident victims within 30 days of an accident. The state argued that there were substantial interests in protecting Texas citizens from emotional distress, stopping medical providers from making false, misleading or deceptive solicitations, protecting the privacy of Texas citizens, and maintaining ethical standards for chiropractors. The court found that those interests were substantial and that therefore the state met the first test under Central Hudson. But the state did not meet the second and third factors — that the law directly and materially advances the state’s interests and that it was narrowly drawn. The court also was concerned that this prohibition applied to medical professionals, which as a group had not previously been regulated in this manner. Moreover, plaintiff chiropractor was able to establish the benefit of early medical treatment. The alternative could be a substantial time period between injury and treatment. As such, the court found that the statute created a large gap between the supposed harm and the speech ban.

Significance of Opinion
Regulations on professional solicitations have been upheld previously and are not new to the legal profession. The U.S. Supreme Court previously has deferred to a state’s interest in protecting the privacy rights of accident victims. This case, however, presents an interesting example of when a state can overreach. The criminal consequences to the professionals was a compelling reason to strike the law, as was the effect of the law upon criminal defendants with competing constitutional protections such as the right to a speedy trial and right to counsel.

Trending: Lawyer Mobility Eroding State Jurisdiction Boundaries

Trio of Recent Decisions Address Lawyer Mobilityand Further Erode State-Based Jurisdictional Barriers

Another in Our Series of Hinshaw Lawyers for the Profession® Alerts

New York State Bar Ass’n Professional Ethics Comm. Op. 835 (Dec. 24, 2009)
Schoenefeld v. State of New York, 09-CV-504 (N.D.N.Y. Feb. 11, 2010)
In re Anthony, No. 20090576, 26 Law. Man. Prof. Conduct 125 (Utah, Feb. 2, 2010)

Brief Summary
Three recent opinions address lawyer mobility between jurisdictions. An opinion from the New York State Bar Committee for Professional Ethics issued a strong plea urging the New York Assembly or the Appellate Divisions to develop rules to address the issue of whether an out-of-state lawyer may serve as in-house counsel for a New York corporation and maintain an office in New York. A federal district court opinion discusses the challenge to New York’s requirement of non-resident New York licensed lawyers (but not resident New York lawyers) to maintain an office in New York. The court found that the restriction could give rise to a challenge under the Comity Clause. In a third case, a long-practicing lawyer from California challenged Utah’s admission policy requiring out-of-state lawyers to have graduated from ABA-accredited law schools. The Utah Supreme Court found that a lawyer’s unblemished record can outweigh the educational accreditation requirements.

Complete Summary
In a recent Ethics Opinion, The New York State Bar Association Committee on Professional Ethics issued a plea to the New York Assembly to develop rules to address whether an out-of-state lawyer may serve as in-house counsel for a New York corporation and maintain an office in New York:

“The question whether an out-of-state lawyer may serve as in-house counsel for a New York corporation and maintain an office in New York for that purpose is a question of law, and is not answered by the New York Rules of Professional Conduct. The question is therefore beyond our jurisdiction and we offer no opinion on the question. Because the question is a recurring one, however, this Committee urges the Appellate Divisions and/or the New York State Legislature to provide further guidance regarding whether and to what extent out-of-state lawyers – especially in-house lawyers who provide services solely to a corporate employer – are authorized to practice law in New York.”

In Schoenefeld, the United States District Court for the Northern District of New York ruled that the Comity Clause (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”) could provide the basis for a suit challenging a provision of the New York Judiciary Law (the Residency Provision). The Residency Provision required only non-resident lawyers to have offices in New York. A New Jersey-based lawyer claimed that the law damaged her when she refrained from accepting New York legal cases, although she was otherwise fully credentialed, purely on the basis of not having an office in the state. She argued that the law impermissibly imposed differing requirements on resident and non-resident attorneys. The court dismissed two of her three claims that the law violated various provisions of the U.S. Constitution, and concluded that New York has an interest in insuring that non-resident attorneys are familiar with New York law, are accessible to New York clients, courts and other parties, and maintain a stake in the integrity of the New York state bar. But the court allowed the third claim — that the Residency Provision allegedly violated the Comity Clause — to proceed. Here, the out-of-state attorney was able to establish sufficient facts, if taken as true, that she had a protected interest in practicing law in New York while a resident of New Jersey. At this preliminary stage however, the state offered no substantial reasons for the Residency Provision’s different treatment of residents and non-residents. Nor did it show any substantial relationship between that treatment and the state’s objectives. The court did not expressly find that the Residency Provision was constitutional or not.

In the case In re Anthony, another lawyer mobility restriction was lifted for a meritorious California attorney in Utah. The Utah Supreme Court waived the state’s rule requiring a lawyer to have graduated from an ABA-accredited law school. In 1980, Thomas Anthony graduated from Western State University College of Law, which was then a state-accredited but not ABA-accredited law school. (It eventually received full accreditation in 2009). Anthony applied to sit for the Utah bar in 1988, which at the time accepted his educational background. But he did not ultimately take the exam that year. Twenty years later, Anthony again applied for admission to Utah. In the interim, however, the state had changed its rules to require that an applicant must have graduated from an ABA-accredited school. As such, Anthony’s 2008 application was denied by the bar. Anthony petitioned the Utah Supreme Court for extraordinary relief. He supplemented his petition with proof of his 28-year unblemished professional history and support from judges, clients and fellow attorneys. The Court took three steps. First, it agreed that appealing the bar’s denial of admission through its internal structure would have been a futile exercise. Second, it waived Anthony’s particular barrier of graduating from a non-accredited law school. Finally, it directed the Utah bar to implement a waiver process for non-resident attorneys who have graduated from non-accredited law schools. The Court was influenced by the primary goal of the admission process — to protect the citizens of Utah by ensuring that licensed attorneys are competent and ethical. Having proven he met both goals, Anthony was therefore eligible for admission to take the Utah bar exam.

Significance of Opinions
These three matters reflect the growing push toward greater acceptance of the mobility of lawyers, in a world where restrictions based solely on state boundaries correspond less and less to the realities of law practice.

Missouri Adopts Uniform Bar Examination

Missouri has become the first state in the nation to adopt the Uniform Bar Examination (UBE). The UBE will test general, not state-specific, law. It will first be used for the February 2011 Bar Examination.

To ensure applicants have competency in Missouri law, applicants for admission by examination will also complete a course on Missouri law.

The Missouri Board of Law Examiners’ press release on adoption of the UBE is available at https://www.mble.org/news.action?id=780.

P.S. On a presumably unrelated note, the Missouri Board of Law Examiners is seeking a new executive director. See https://www.mble.org/news.action?id=840.