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Crossing the Border: Issues in the Multistate Practice of Law

David G. Ebner, Gold Mine Financing (1988)

In selecting counsel to work in a new jurisdiction, a company consequently must balance its existing counsel's familiarity with the company's business against the complexity of the legal matters which will be encountered in the new jurisdiction. While a lawyer must make a similar business decision in determining whether it is economically feasible to learn the relevant law of the new jurisdiction, he also faces a threshold question as to whether he is even legally permitted to perform the requested services. This paper assumes that a company and its counsel wish to continue work in a new jurisdiction, focusing on the legal and ethical constraints which may prohibit this from occurring.



THE ETHICAL FRAMEWORK

Depending on the state, a lawyer's ethical responsibilities are governed either by the Code of Professional Responsibility (the “Code”)1 or the Model Rules of Professional Conduct (“Model Rules”).2 Both the Code3 and the Model Rules4 defer to local substantive law in determining the circumstances under which a lawyer may practice outside his licensing jurisdiction. Ethical Consideration 3-9 under the Code recognizes the danger of such blanket deference to state law and cautions that:

...the demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance