Barred or Barred?

In the Empire State, we refer to lawyers who are authorized to practice law as "admitted."  Whenever someone used the word "barred," my mind immediately envisions an iron gate making it impossible to get through.  As in, the lawyer was barred from any public place where pleasant people congregate.

In other locales, the word "barred" means that a person is admitted to the bar. Weird locales to a New York lawyer's ear.

But what makes it even weirder is when the lawyer refers to those locales as the places where they find and represent clients, even though they are neither admitted nor barred.  That's because lawyers, whether you like it or not, are only authorized to be lawyers in places where they have been barred. Or admitted, if you come from a place where people don't talk funny.

This is a fairly fundamental aspect to being a lawyer.  Just as a cop is only a cop in the geographical area of his employment, authorized by law to make split-second decisions that elsewhere would assure him a murder charge, a lawyer can only practice law where the sanctioning authority says he can. Practicing law in places where a lawyer is unauthorized is a pretty clear wrong, much like raiding an escrow account because that new car is calling your name.  Even the ABA, in rule 5.5, admits as much, and they are certainly the last carry the torch of arcane ethical rules.

One would think that the disciplinary authority of jurisdictions where a person engaged in the unauthorized practice of law would take something so obvious pretty seriously.  After all, if they don't keep a lid on who gets to hang around their jurisdiction claiming to be a lawyer, then what's to stop anybody from doing so?  And if anybody can do so, then the public would be deceived and led to seek legal advice from people of dubious competence and devoid of ethics, and the bar associations wouldn't get their dues paid. It would be a disaster all around.

Which led me to ponder the significance of this description of a law practice.

She is barred to practice law in New York and New Jersey--but she lives in South Dakota with her husband and one year-old daughter. She services clients living everywhere from Bangladesh and Costa Rica to California and Florida.

Nobody is "barred" in New York and New Jersey, where local custom is to call it "admitted," the first give-away that something is amiss.  The rules of admission, the lawfulness of practicing law if you will, do not seem to strike home here. To add to the issue, New Jersey has rather stringent physical office requirements. A quick click on the New Jersey lawyer registration records puts this lawyer in Phoenix, Arizona, which isn't too often confused with Fargo.

The notion of authorization to practice law being limited by geography is very old school to new lawyers.  Even the Cato Institute thinks it's time to scrap it, if only to reduce lawyers fees by making lawyers compete nationwide.  I'm disinclined to go with the convenient flow on this one, until someone comes up with a way to make lawyers sufficiently competent in the law and procedure of 51 jurisdictions to safeguard clients.  Of course, if the lawyer is sufficiently superficial, then the differences between jurisdictions don't really matter that much; they are relatively incompetent in all jurisdictions, making the unauthorized practice of law the least of the problems.

The rationale for eschewing such archaic rules as this is two-fold. First, that the internet has changed everything, by making it easy for anyone to promote themselves online to people anywhere and everywhere, and shouldn't a person be entitled to take money from anyone willing to give it?

The second is that old lawyers, the ones who think there is some merit in ethical rules for lawyers, tend to hate anything new and anyone who has found a better way.  We fear the new, as the young will steal our business by being smarter, cuter, cooler and more cutting edge.  Ethics rules exist to keep them down, to oppress them and prevent them from seizing upon new ideas, new technologies that take away our edge of experience and shift the mojo.  We must hate them for ruining our perfect lawyer world.

It strikes me that while their rationale is silly, as what the post describes as a "successful practice" wouldn't be sufficient to support my addiction to three regular meals, there is a point to their cutting edge efforts. If it's cool with the disciplinary authorities in New York, New Jersey, South Dakota, California, Florida and Costa Rica (assuming they have anything remotely similar to what we have), then why shouldn't this lawyer be able to engage in the unauthorized practice of law?

Either it's a good rule, in which case the sanctioning bodies need to enforce it, or it's not, in which case they ought to cross it off the books.  But as long as it remains a basic rule of being a lawyer, some of us will adhere to it because we feel compelled to honor our ethical requirements. 

So which is it, guys?  Am I barred from representing folks any damn place I want or not?  If things like the unauthorized practice of law are too old school to bother with, let's clear this up and quell the commotion. Either way, get off your tired old butts and deal with this.

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Source: http://blog.simplejustice.us/2013/04/24/barred-or-barred.aspx?ref=rss

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