There’s a reasoned debate over whether it makes sense, in a flat world or even just a flat nation, to license lawyers to practice on a state by state basis.  Federalism be damned, the lines frequently blur and the calls for help come from all corners of the United States. 

Granted, one can always travel pro hac vice, provided you find a local lawyer willing, for a fee, to offer his office as a mail drop and messenger service, and some occasional pronunciation advice (do you say vore dyer or voir dire?), but the situation in New York has long remained static.  We don’t get reciprocity because we don’t give reciprocity. 

Until now.  From the New York Law Journal :

Leaders of the New York State Bar Association have asked the Court of Appeals to permit in-house counsels who have a “continuous presence” in New York to be authorized to practice law here without having to pass the state bar exam.

The House of Delegates, meeting Saturday at the group’s Albany headquarters, approved a resolution asking the New York Court of Appeals to add a new Part 522 to its rules to create a registration requirement specifically for in-house counsel.

While relieving in-house counsels of the bar exam requirement and the Appellate Division character and fitness tests to see if they are in good professional standing in their home states, the new rule would require them to pay New York’s biennial $375 lawyer registration fee, to meet the state’s continuing legal education requirements and to be subject to New York’s disciplinary rules.

So how many of you will rush out to mail their NYSBA dues check immediately, now that you know that  the NEW YORK State Bar Association has stood up for the rights of lawyers from elsewhere to practice in New York?  Not all lawyers, of course, but only in-house counsel, because when a lawyer works for a corporation, that changes everything about his familiarity with New York law and competency to practice law.  No really, as explained by the NEW YORK State Bar Association president.

Stephen P. Younger, president of the state bar, said the recommendation, if adopted by the Court, would address an area of “major concern” at large corporations, namely, whether their in-house counsels in New York are engaged in the illegal practice of law when they advise their executives.

“This is about maintaining New York’s place as a center for national and international business and with encouraging companies to come here without worrying that their counsels are practicing illegally,” said Mr. Younger, of Patterson Belknap Webb & Tyler.

Because it’s not like we don’t have any lawyers admitted to practice in New York who could do the lawyering piece.

Wait a second, you say.  That statement smacks of protectionism.  That statement smells like you’re (I’m) advocating to keep foreign lawyers out so that the lawyering in New York is done by lawyers admitted to practice in New York.  Hah, you say, Greenfield is a protectionist!

“Hah!,” I say back at you.  I’ve set you up and you didn’t even see it coming. 

The principled rationale for state by state admission to the bar, assurance that anyone purporting to represent or provide legal advice to another, is competent to do so, doesn’t admit to an exception for a discrete group of attorneys based solely on the nature of their employment.  Are lawyers imbued with super-competence by virtue of being hired by a corporation as opposed to anyone else? 

This is a result-oriented proposal, designed to improve the corporate climate in New York at the expense of New York admitted lawyers.  It does not, by any metric, assure that a lawyer admitted in, say, Florida, is competent to advise on New York law.  Quite the contrary, it ignores the issue altogether. 

[NYSBA committee chair, Joseph E.] Neuhaus said statutes on the unlawful practice of law are “unclear” and there is not enough case law to clarify the issue.

“Nobody thinks that [serving as in-house counsel in New York for] one week is practicing law,” said Mr. Neuhaus, of Sullivan & Cromwell. “The issue is not having a transitory presence. The issue is having a continuous presence. We are talking about someone who was transferred here for two of three years.”

Of course, if they transfer here for years, then they certainly have the time and opportunity to take the bar here as well.  But that’s not what this is all about.

New York would require a reciprocity agreement with another state or country allowing New York lawyers to be admitted for the practice of law under similar circumstances.

Aha!  So the give-back is that other states, once New York has opened the door if only slightly, will reciprocate and let New York admitted lawyers pretend they have a clue about the laws and norms of other jurisdictions.

According to the committee on attorney conduct, 44 states and the District of Columbia have adopted rules permitting out-of-state lawyers employed by in-state entities to practice locally. In addition to New York, the states without reciprocity agreements are Hawaii, Mississippi, Montana, Texas and West Virginia, according to state bar officials.

Of course, the only group of lawyers to benefit from this measure happens to be in-house counsel.  While other states offer reciprocity of admission to all lawyers coming from states that do likewise, New York isn’t one of them.  Maybe this is the start of a change of direction for New York, recognizing that lawyers shouldn’t be married to only one state in their practice of law given that our country, our world, has grown increasingly flat.  Or maybe this reflects a discrete concern of the New York State Bar Association to favor in-house counsel.  Either way, it won’t do us a lick of good.

Florida, on the other hand, would never consider recognizing a New York lawyer’s admission as being worth spit, since that would mean every semi-retired New York lawyer would hang out a shingle in God’s Waiting Room while playing a round of winter golf.  At least they understand the true meaning of protectionism, a very principled rationale.