And that is not that the half of it. Even attending a recognized law school, passing the state bar exam and taking an ethics course will not satisfy the state's requirements to practice law here. New Jersey is among a handful of states that requires a lawyer wishing to do work in the state to maintain a legitimate office here -- what is known as the bona fide office rule. But now this rule, which has been the subject of several lawsuits over the last 20 years, is about to be challenged once again. Two panels appointed by the State Supreme Court are soon expected to report their findings on this and other issues governing the practice of law in New Jersey.
Yet while the New Jersey State Bar Association appears to be circling its wagons in an effort to keep the business at home, other states -- in accordance with new recommendations set down by the American Bar Association -- are looking at ways to ease restrictions for lawyers from outside jurisdictions to practice within their borders.
The justification goes like this:
"New Jersey has the unique geographic position of being surrounded by large jurisdictions," said Allen Etish, chairman of the state Bar Association's task force on multijurisdictional practice. "We feel we have an obligation to our citizens to ensure they are represented by people who know what New Jersey law is, rather than just slipping over a state border."
Sandwiched between two major cities, New Jersey lawyers are concerned about the thousands of attorneys in New York City and Philadelphia who could siphon off some of their caseload. And no one is arguing that New Jersey has a shortage of lawyers -- about 70,000 are licensed in the state -- though only about 30,000 practice here, 18,000 of whom are members of the state Bar Association. But those seeking to open up the borders say clients should be able to choose for themselves, and call New Jersey's attitude provincial, particularly in today's highly wired world of instantaneous communications.
"In this age of Internet, e-mail, overnight delivery, and faxes, we're dealing with people all over the world, and this clearly is a protectionist stance," said Leonard Bernstein of Reed Smith, a Philadelphia-based law firm. "The New Jersey lawyer is an anachronism that is out of step with the times, and the rule should be changed."
Historically, the highest court in each state sets the rules by which lawyers can practice there. Within the next few weeks, the state Supreme Court is expected to receive reports from two panels it commissioned to review and update standards governing who can practice law in New Jersey and under what circumstances. Mr. Etish sits on one of them, the Wallace Committee, which is focusing on procedures for admission to the bar. A second commission, headed by former State Supreme Court Justice Stewart Pollock, is reviewing issues of multi-jurisdictional practice, including a proposal to allow lawyers practicing in other states to become licensed here without passing the state bar exam. Both panels have been asked to review the bona fide office rule.
Justice Pollock said his commission was scheduled to meet on Thursday to discuss the new model rules adopted by the American Bar Association at its annual meeting last month, and hoped to be able to report to the state Supreme Court soon afterward.
"These are new and challenging issues that reflect an attempt by the organized bar to address the evolving needs of clients in an era when people daily communicate and travel across state lines," said Justice Pollock. "These issues are important to the public and to lawyers everywhere, especially in New Jersey, in its position between New York and Philadelphia."
The Wallace Committee is expected to issue its report soon after Labor Day, said Mr. Etish, who, while reluctant to discuss the panel's findings, did say, "We're pretty much in agreement on what we did."
Speaking for himself, he noted: "I'm very happy with the status quo."
For now, the bona fide office requirement says that lawyers who are licensed to practice in New Jersey must also have an office here -- complete with a receptionist and a space for meeting clients. The rule was challenged five years ago, and upheld by United States Court of Appeals for the Third District, in Philadelphia, which found it constitutional, based not on the state Supreme Court's claims that having a home-based lawyer guaranteed more competency or more accountability, but simply more accessibility.
The rule was more recently challenged by the Philadelphia Bar Association, which proposed purchasing or leasing a building in New Jersey and then subleasing space to Pennsylvania lawyers licensed to practice in New Jersey. There, they could meet clients, collect messages and store files. After the proposal bounced around for several months, an advisory committee ultimately recommended the state Supreme Court reject this arrangement, based on concerns about client confidentiality and office management.
"I'm certainly glad this is not a death penalty case, because I certainly would have been dead by now," said Allan Gordon, chancellor of the Philadelphia Bar Association, who, notwithstanding the advisory committee's report, has testified before both Supreme Court-appointed panels in recent months about doing away with the bona fide office rule, which affects countless thousands of lawyers.
"In 2002, when most of what lawyers do is not dealing face to face with clients in any way, it is almost impossible not to be accessible on a daily basis," said Mr. Gordon, who noted that someone living in South Jersey or commuting to Philadelphia might find it easier to use a lawyer across the bridge than one in Princeton or Newark.
Mr. Gordon and other opponents of the rule contend that it is not the large firms, which are willing and able to establish an office in New Jersey, that are affected by the bona fide office rule as much as the smaller firms or solo-practitioners who cannot afford to establish a second office in New Jersey.
For instance, when Mr. Bernstein joined Reed Smith 10 years ago, his new firm had no presence in New Jersey, so it asked him to open an office in Princeton to continue representing his New Jersey-based clients. Today, the Princeton office has 60 lawyers and the firm's Newark office has 15 lawyers.
"A larger firm has the capacity, as annoyed as we might be, to meet the practice of the rule," Mr. Bernstein said. "What this does is it discriminates against the small practitioner who has a license to practice in New Jersey."
The bona fide office rule is not the only front the state Bar Association's admittedly conservative platform is being challenged on. At the American Bar Association's annual meeting last month, the bar's Commission on Multijursidictional Practice issued its resolutions on new model rules for professional conduct. Adopted by the Bar Association's House of Delegates, the precedent-setting model rules were aimed at easing rules governing interstate legal representation, particularly on a temporary basis.
While the national bar's rules are not binding, they do put added pressure on individual states to adopt similar codes in an effort to update outmoded standards and move toward uniformity. As the commission concluded, "keeping antiquated laws on the books breeds public disrespect for the law," a warning that does not go unnoticed by a profession that has, at times, been ranked just behind used car salesmen in inspiring public confidence.
At the heart of the Bar Association's new policies is the recognition that lawyers are increasingly being asked to provide services in jurisdictions where they may not be licensed, either because they specialize in a particular field, or because their clients have business interests in other states. To that end, the commission, which studied the issue for two years, recommended that attorneys be allowed to conduct business in another jurisdiction temporarily in matters that are related to a pending or potential legal proceeding that originated in a state where the lawyer was licensed.
When the Constitution established the state-based practice of law 225 years ago, the system made sense, since lawyers were generally hired to represent people in court, mostly on local matters. But today, the bulk of an attorney's work occurs outside the courtroom, and the issues involve national and even international law. Under the new rules, appearing in court would still require the presence of a locally licensed attorney, but much of the other case-related work could be handled by an out-of-state lawyer. For instance, a New Jersey lawyer could travel to Minnesota to interview witnesses, enter negotiations, take depositions or provide legal advice in matters related to a New Jersey-based case.
In the past, New Jersey's bar has been reluctant to allow this kind of cross-representation from out-of-state lawyers, but the chairman of the commission that studied this matter, who is from Roseland, warned that the state "can't be an ostrich, putting its head in the sand."
"If New Jersey lawyers want to compete to keep their New Jersey based business, we have to allow others to have the ability to do the same," said the lawyer, Wayne Positan, who was chairman of the American Bar Association's Commission on Multijursidictional Practice. "A lot of national firms already have a presence here. If our lawyers are worried that they're going to come in and eat our lunch, guess what? They already ate it."
In his national role, Mr. Positan -- who also serves as treasurer of the New Jersey Bar Association and is in line to be president of the organization in five years -- finds himself taking a more moderate position than what might be acceptable at the state level.
"I'm walking a little bit of a line," he said. "but I say if we're going to have a voice in national affairs, we have to take a national outlook once in a while."
Among other issues the state Supreme Court will consider in setting new standards for practicing law in New Jersey are the American Bar Association's rules for practice by foreign lawyers and the licensing of out-of-state lawyers, both of which are being reviewed by Justice Pollock's commission.
Regarding lawyers with degrees from foreign law schools, the bar recommends identifying areas where foreign lawyers can practice on a restricted basis. On the "Admission by motion" rule, the bar would allow an attorney who has been practicing in one state for five to seven years to be licensed in another without taking the state bar exam. Fifteen other states allow such admissions, but New Jersey has been reluctant to break down that barrier.
Mr. Etish doubted that the state would waive any restrictions against foreign lawyers, while Mr. Positan, again reflecting a more national agenda, argued that he should be able to go into another state to handle a labor negotiation without having to take that state's bar exam.
As Mr. Positan put it, "It's not practical for me, to go back after 28 years as a labor litigator, and have to take an exam that presumes I'm a kid fresh out of law school."
It may take some time, but Mr. Positan speculated that the state would gradually move toward a more moderate position on opening up the borders to outside lawyers.
"These have been hotly debated issues, and we are at a crossroads," he said. "I presume it is going to be an evolutionary change, a little bit of 'let's try this and see what works.' "
Mr. Gordon was somewhat less optimistic in predicting how the state would respond to the bona fide office rule and other issues affecting the practice of law here.
"I would find it very difficult to believe that New Jersey is going to fly in the face of the rest of the country," said the 62-year-old attorney. "I think eventually they'll do away with the bona fide office law. But I don't know if I'll still be practicing law
Copyright 2002 The New York Times Company
