Originally published in “For the Defense” the Journal of the Defense Research Institute, April 1997

Long-Arm Jurisdiction

in Legal Malpractice

BY PETER A. MONAHAN

AND PATRICIA M. NOONAN

INTRODUCTION

The advance in modern transportation and communications systems has prompted lawyers and law firms to expand their client base beyond state boundaries. With the benefits derived from this expansion has come the risk of lawsuits in out-of-state forums. This risk is more than just a fleeting thought for many attorneys. Like their professional counterparts in the medical field, attorneys are becoming more aware of the likelihood that they will have to defend against malpractice allegations at some point in their careers.

The power of an out-of-state court to acquire personal jurisdiction over a nonresident lawyer is governed by a twofold inquiry. First, the court must be granted jurisdictional power by a state rule or legislative enactment. Second, the authorized exercise of jurisdiction must be constitutionally permissible under the Due Process Clause of the Fourteenth Amendment. In many instances, the two inquiries will be similar, since state statutes granting jurisdictional power often mirror United States Supreme Court decisions defining the constitutional limits of asserting personal jurisdiction.

The constitutional inquiry has never been an easy one for practitioners or courts, and it is made even more difficult when a court is asked to apply principles derived primarily in commercial settings to the professional representation context. State and lower federal courts, since the 1970s, have struggled with this application. Without guidance from the Supreme Court, the decisional law has varied in many respects. Some generalities, however, can be discerned from the cases to guide desire to limit their exposure to legal malpractice suits in out-of-state forums and to assist attorneys opposing the jurisdiction of a foreign forum.

THE CONSTITUTIONAL INQUIRY

The renowned case of International Shoe Co. v. Washington, 326 U.S. 310 (1945), set forth the origins of modern personal jurisdictional law. In International Shoe, the Supreme Court held that the Due Process Clause required that the defendant meet certain minimum contacts with the forum state such that the maintenance of the action in the forum does not offend the "traditional conception of fair play and substantial justice." 326 U.S. at 320. This "minimum contacts" analysis was later refined into a separate analysis of categories labeled specific and general jurisdiction.

Specific jurisdiction arose from the concept in International Shoe that a court could exercise jurisdiction in an action related to the nonresident's substantial instate activities. 326 U.S. at 318. Also rooted in International Shoe was the concept that a court could exercise general jurisdiction in an action unrelated to the nonresident's instate activities where those activities are considered so substantial and of such a nature to justify any lawsuit brought against the nonresident in the forum. 326 U.S. at 316.

SPECIFIC JURISDICTION

In numerous decisions after International Shoe until the late 1980s, the Supreme Court expanded upon the concept that a court could exercise jurisdiction on causes of action related to a nonresident's instate activities. Lower federal courts have interpreted these decisions as establishing a three-part specific jurisdictional analysis which requires that: (1) some action must be taken whereby defendant purposefully avails himself or herself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of the forum's laws; (2) the claim must arise out of or result from defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable. See, e.g., Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). Application of this three-part test is anything but simplistic. It requires an in-depth examination of the Supreme Court decisions on each of the test's subparts.

The inquiry into whether the suit "arises out of the forum contact focuses on the relationship between the instate activities and the asserted cause of action. The Supreme Court explained this relationship in International Shoe (326 U.S. at 319):

To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.

The Supreme Court's discussion of this relationship between in-state activities and the asserted claim has been limited. In International Shoe, the action before the Court sought the enforcement of legal obligations arising out of specific business activities performed within the forum. There, the Court found a sufficient causal relationship where the action sought to compel an out-of-state corporation to pay state unemployment tax on salaries paid to state-based employees. The defendant, a Delaware company, engaged in the manufacture and sale of shoes, had no office in Washington, and did not conduct its manufacturing and distribution of merchandise in Washington. It did, however, employ and compensate 11 to 13 salesmen in Washington. Thus, the suit, which sought to enforce a legal obligation to pay taxes, clearly arose from the company's instate activity consisting of the employment of salesmen within the state.

The Court has also found the "arising out of requirement to be satisfied in a contract action where the contract had a substantial connection with the state. In McGee v. International Life Insurance Co., 355 U.S. 220 (1957), a beneficiary of a life insurance policy filed suit in California against a Texas defendant who had assumed the obligations of a predecessor Arizona insurance company and subsequently mailed from its Texas office a renewal offer to the insured in California. The offer was accepted by the insured, who paid premiums for two years through the mail from California to the Texas office. Other than the policy that was the subject of the suit, the Texas defendant had never solicited or done any insurance business in California. In finding jurisdiction proper, the Court emphasized that the suit arose out of a contract which had a substantial connection with the state. 355 U.S. at 221-22.

In addition to the "arising out of requirement, the Supreme Court has given much attention to the "purposeful availment" requirement. The purposeful availment requirement involves two principles. First, the forum contact necessary to satisfy due process cannot be predicated upon the unilateral activity of one who claims some relationship with a nonresident defendant. Second, due process requirements mandate "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). An individual's contract with a forum resident alone will not automatically satisfy the "purposeful availment" requirement. Rather, a court is to look at various factors, including the prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985).

In Burger King, a franchisor headquartered in Florida brought an action in Florida against one of its Michigan franchisees, seeking injunctive relief and damages based upon the franchisee's breach of obligations under its franchise contract. In finding the Florida court properly exercised jurisdiction over the Michigan resident, the Court stated that parties who "reach out beyond one state and create continuing [contractual] relationships and obligations with citizens of another state" should be subject to suit in the other state for the consequences of their activities. 471 U.S. at 473, citing Travelers Health Association v. Virginia, 339 U.S. 643, 647 (1950). It concluded that the Michigan resident deliberately reached out beyond Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and the manifold benefits that would derive from affiliation with a nationwide organization. 471 U.S. at 478.

The Supreme Court has applied the "purposeful availment" requirement in addressing various theories which had emerged in tort actions involving commercial activity affecting state residents. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), the Court acknowledged the "stream of commerce" theory by stating that a court may exercise personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. The purposeful availment requirement would be satisfied, the Court suggested, if the sale is not simply an isolated occurrence, but arises from the defendant's efforts to serve the market directly or indirectly for its product in the forum state. Id.

In Asahi Metal Industry Co. v. Superior Court (Cheng Shin Rubber Industrial Co.), 480 U.S. 102 (1987), the Court elaborated on the type of conduct, in addition to the mere placement of a product into the stream of commerce, which would indicate an intent or purpose to serve the market in the forum state. This intent could be shown by conduct such as designing the product for the market in the forum state, advertising in the forum state, establishing channels for providing regular advice to customers in the forum state, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum state. 480 U.S. at 111.

Additionally, the Court has examined the "effects test," adopted by many state courts to reach wrongful activities outside of the state causing injury in the state. In Calder v. Jones, 465 U.S. 783 (1984), a California television entertainer brought a libel action against an editor and reporter for the National Enquirer based upon an article written and edited in Florida. The Court found jurisdiction proper based upon the "effects" of their Florida conduct in California. The Court rejected an analogy to the Court's foreseeability analysis in World-Wide Volkswagen, reasoning that the Florida residents were charged not with mere untargeted negligence, but with intentional and allegedly tortious actions expressly aimed at California. 465 U.S. at 788. The Florida residents wrote and published an article that they knew would have a potentially devastating impact upon the California entertainer, and that the brunt of the injury would be felt by the entertainer in the state where she lived and worked and where the National Enquirer has its largest circulation. Id.

Finally, in International Shoe, the Supreme Court suggested that no separate inquiry into reasonableness was needed. However, the Court has not consistently applied the final step of the analysis, which requires that the exercise of jurisdiction be reasonable. 326 U.S. at 318. Nevertheless, in the Court's most recent discussion of this requirement, in Asahi Metal Industry, it did make an independent inquiry into whether the exercise of jurisdiction was reasonable. In Asahi, the Court reiterated its discussion in earlier opinions that the reasonableness inquiry involves a court's consideration of the burden on the defendant, the interests of the forum state, and the plaintiff’s interest in obtaining relief. The inquiry also involves a court's weighing "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies." 480 U.S. at 113, citing World-Wide Volkswagen, 444 U.S. at 292.

In Asahi, though, the Court found that the interests of the plaintiff and the California forum were slight, since plaintiff was not a California resident and the transaction on which the indemnification claim was based took place in Taiwan. Significantly, Asahi is the only Supreme Court decision that has found the exercise of jurisdiction improper solely on the basis that it was unreasonable. Specifically, the Court stated that when minimum contacts have been established, the interests of the plaintiff and the forum often justify even the serious burdens placed on the alien defendant. 480 U.S. at 113.

GENERAL JURISDICTION

The exercise of a court's general jurisdiction permits it to hear any lawsuit against a nonresident, even if the suit is unrelated to any of the nonresident's instate activities. Although the Supreme Court in International Shoe suggested that such an assertion of jurisdiction would be constitutionally permissible where the non-resident's continuous in-state activities are considered so substantial and of such a nature to justify an unrelated lawsuit (326 U.S. at 316), the Court has had few opportunities to elaborate on the type of activities which would satisfy these constitutional mandates. In the cases it has reviewed, the Court's discussion has been fact-specific and has been limited to the commercial setting.

For example, the Supreme Court has looked to whether the particular business contacts within the forum are "continuous and systematic." In Perkins v. Banquet Consolidated Mining Co., 342 U.S. 437 (1952), the Court found that a Philippine mining corporation's business contacts in Ohio were "continuous and systematic" to permit an Ohio court to assert its general jurisdiction power. There, the Philippine corporation had moved its headquarters to Ohio when its operations were halted during the occupation of the Philippines by the Japanese during World War II. The president and principal stockholder maintained several company bank accounts in Ohio and maintained an Ohio office, from which he sent correspondences, distributed salary checks, held several directors meetings, supervised company policies, and dispatched funds relating to the Philippine mining properties. 342 U.S. at 447-48.

The Court has found isolated business contacts with the forum insufficient to permit the assertion of general jurisdiction. In Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984), a Colombian corporation entered into a contract to provide helicopter transportation for a Peruvian consortium. After a helicopter owned by the corporation crashed in Peru, wrongful death actions were filed in a Texas state court. The corporation's only contacts with the Texas forum consisted of sending its chief executive officer to Houston to negotiate the contract with the consortium, acceptance of checks drawn on a Texas bank, purchasing helicopters, equipment, and training services from a Texas manufacturer, and sending personnel to that manufacturer's facilities for training. The corporation was not authorized to do business in Texas, and had never solicited business in Texas or sold any product that reached Texas.

The Court found the one business trip to Houston could not have been regarded as a contact of a "continuous and systematic" nature to support the assertion of in personam jurisdiction. It similarly found that the acceptance of checks drawn on a Texas bank to be of negligible significance. The Court concluded that the purchases of helicopters and related training trips standing alone were not sufficient jurisdictional contacts, and the fact that petitioner sent personnel to Texas for training in connection with the purchases did not enhance the nature of the Texas contacts. 466 U.S. at 417.

ASSERTION OF SPECIFIC JURISDICTION OVER NONRESIDENT LAWYERS

Many courts have applied the three-part constitutional analysis in considering a forum court's power to exercise specific jurisdiction over nonresident attorneys in actions pertaining to the legal representation of a forum client. For the most part, the "reasonableness" and "arising out of requirements have not been determinative of the question. Few courts addressing the issue in the professional representation context have declined to exercise jurisdiction on the basis that to do so would be unreasonable. See, e.g., Culligan International Co. v. Wallace, Ross & Sims, 273 Ill.App.3d 230, 650 N.E.2d 565 (1995). One of the few instances where a court did decline jurisdiction is Washington v. Magazzu, 216 N.J.Super. 23, 522 A.2d 1013 (1987). There, the court found a nonresident attorney who had represented a resident client in a medical malpractice lawsuit had minimum contacts with the forum. It found that the exercise of jurisdiction would be unreasonable primarily because proof of legal malpractice would require the trial of the underlying medical malpractice claims as they would be tried in the attorney's resident state. The court noted that all the key witnesses and most of the vital evidence were centered in the attorney's resident state, and it indicated that the applicable law would more readily be applied in that state. 522 A.2d at 1016.

Additionally, most courts have found the requirement that the suit arise out of the forum-related activities to be satisfied with little or no analysis of this requirement. See, e.g., Culligan, supra; Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 226 (8th Cir. 1987); Brown v. Watson, 207 Cal.App.3d 1306, 1314, 255 Cal.Rptr. 507, 512 (1989). For example, courts have found that the requirement is satisfied merely by the fact that the claims of negligence have arisen from the attorney-client relationship between the attorney and the forum resident. A legal malpractice action must arise out of the attorney's specific contacts in the former state, not the general attorney-client relationship. There are a few notable exceptions to this rule, such as Sawtelle v. Farrell, 70 F.3d 1381, 1389-90 (1st Cir. 1995), and Campbell v. Gasper, 102 F.R.D. 159,162 (D.Nev. 1984), where the plaintiff's allegations do not focus on what the lawyer did in contacting the forum resident, but on what he did not do during his representation of the forum resident outside the forum.

Courts have not focused on whether the specific acts of negligence alleged arise out of the attorney's legal activities within the forum. For example, in Dubree v. Myers, 464 F.Supp. 442 (D.Vt. 1978), the attorney represented an out-of-state client in a lawsuit filed in the attorney's state; the legal activities in the client's state included the attorney's travel to the forum to consult with the client and for depositions relating to the lawsuit. The client filed an action in his resident state alleging that the lawyer charged unreasonable legal fees and was negligent in negotiating a settlement agreement on his behalf. The Dubree court broadly read the "arising out of 'requirement to be satisfied in that case since the legal malpractice action arose out of "the manner in which defendant allegedly conducted his professional relationship with and his representation of plaintiff." The court concluded that because the cause of action arose out of "the entire attorney-client relationship and because a significant portion of that relationship and of defendant's acts of representing plaintiff are centered in" the forum, the cause of action bore a sufficient relationship to the forum activities. 464 F.Supp. at 446.

Thus, the determination whether an attorney will be subject to the out of state forum's jurisdiction in a legal malpractice lawsuit has most often come down to the examination whether the attorney's contacts with the forum satisfy the "purposeful availment" requirement. Consistent with the teachings of Burger King v. Rudzewicz that the contract alone with a forum resident will not establish jurisdiction, no court has found that the mere fact that an attorney undertakes the representation of a forum resident establishes the purposeful availment of the privilege of conducting activities in the forum's state. Rather, the courts have looked to the attorney's actions in undertaking the attorney-client relationship, the attorney's specific contacts with the forum during the legal representation, and, in some instances, the nature of the allegations against the attorney.

SOLICITATION OF OUT-OF-STATE CLIENTS

An attorney's initiation or direct solicitation of the relationship with the out-of-state client is likely to be a significant consideration in finding that the attorney purposefully availed himself or herself of the forum's privileges. In the commercial context, the Supreme Court has found significant to the purposeful availment inquiry whether the particular business with the forum resident was solicited by or initiated by the nonresident defendant. In Hanson v. Denckla, supra, 357 U.S. at 249, it compared the fact that defendant did not solicit forum business in the case before it with the facts of International Shoe, McGee, and Travelers Health Association v. Virginia, where other courts considering legal malpractice actions have commented on whether the attorney or law firm directly solicited the out-of-state client. See Mayes v. Leipziger, 674 F.2d 178, 184 (2d Cir. 1982); Advance Petroleum Services, Inc. v. Cucullu, 614 So.2d 878,880 (La.App. 1993); Austad, 823 F.2d at 226; Stonecipher v. Sexton, 54 F.R.D. 435, 439 (D.Kans. 1972); Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990). In most of these cases, the courts found the fact that the attorney had not initiated the business with the client to be a primary factor in finding no jurisdiction over the client. (The client had either been referred to the attorney by another person or the client contacted the attorney directly.)

In contrast, a few courts have found the absence of solicitation to be insignificant where the representation extends over a lengthy period of time. Like the dissenting opinion in Federal Deposit Insurance Corp. v. Malmo, 939 F.2d 535, 537 (8th Cir. 1991), these court have picked up on the Burger King Court's discussion of "continuing obligations" with respect to interstate contracts. Even though the lawyers did not deliberately seek the forum resident's business, these courts reason that they deliberately availed themselves of the forum state's benefits by voluntarily assuming to continue the obligation of representing the forum state client. See Waterval v. District Court, 620 P.2d 5, 9 (Colo. 1980); Trinity Industries, Inc. v. Myers & Associates, Ltd., 41 F.3d 229, 231 (5th Cir. 1995).

Very few of the reported cases on legal malpractice have involved an attorney's direct solicitation of a client. This is not surprising, since most ethical rules prohibit a lawyer or law firm from directly soliciting a client's business. In Federal Deposit Insurance Corp. v. Malmo, supra, one of the few cases where the lawyer directly solicited a client, the Eighth Circuit found that the attorney's sole contact with the forum state, a letter to a financial institution offering to represent it in a lawsuit, did not provide a sufficient jurisdictional basis to subject the attorney to suit in the institution's forum state. The dissent in Malmo, however, stated that the exercise of jurisdiction was proper because the attorney's letter indicated a knowing consent to an ongoing relationship with the forum state, such that the attorney could reasonably anticipate being haled into court there. 939 F.2d at 537; see also, Meyers v. Smith, 460 F.Supp. 621 (D.D.C. 1979).

Several courts dealing with professional representation litigation have also considered whether the attorney had advertised in the forum or was licensed to practice law in the forum. See Brown v. Watson, 207 Cal.App.3d 1306, 1310, 255 Cal.Rptr. 507, 509 (1989); Myers v. Emery, 697 S.W.2d 26 (Tex.App. 1985). The fact that the attorney takes out general advertisements in the forum or is licensed to practice law in the forum will not alone satisfy the purposeful availment requirement since the requirement cannot be met with forum activity unrelated to the cause of action. However, the Supreme Court has indicated that activity directed at a forum's market could shed light on whether the related contacts outside the forum amount to purposeful availment. World-Wide Volkswagen, 444 U.S. at 297; Asahi Metal Industry, 480 U.S. at 111. No court has yet applied the Asahi reasoning to find advertising by or licensing of lawyers in the forum to be additional conduct in conjunction with out-of-state activities, which would amount to purposeful availment of the forum's privileges. In Sawtelle v. Farrell, supra, 70 F.3d at 1392-93, the First Circuit rejected the argument that a law firm's national Martindale-Hubbell listing was a direct targeting of the resident state to satisfy the purposeful availment requirement.

CONTACTS WITH OUT-OF-STATE FORUM

Because the decisional law rarely has involved the attorney's direct solicitation of a forum client's business, courts have looked instead to the legal representation itself in the purposeful availment inquiry. Where the attorney represents the client in a lawsuit filed in the forum state or in a transaction taking place in the forum, courts have had little difficulty in finding the requirement satisfied. See, e.g., Turner v. Tranakos, 229 Mont. 51, 744 P.2d 898 (1987). Application of the requirement, however, has proven more problematic in situations where the attorney files the forum resident's lawsuit outside the forum, or where the transaction that is the subject of the representation takes place outside the forum.

Under these circumstances, several courts have set forth a general rule that the mere use of the mails or telephone in consulting with the forum client does not amount to purposeful activity, invoking the benefits and protections of the state on the receiving end of such communications. See Campbell v. Gasper, supra, 102 F.R.D. at 162, and cases cited there. Courts have generally adhered to this proposition. See, e.g., Marchant v. Peeples, 623 S. W.2d 523 (Ark. 1981); Mayes v. Leipziger, supra. An exception arises where the basis of the malpractice suit is the advice rendered during the communications with the forum resident. In Ores v. Kennedy, 218 Ill.App.3d 866, 578 N.E.2d 1139 (1991), the Illinois court found jurisdiction appropriate over a Texas attorney, hired as local counsel to admit a will to probate, based primarily on his repeated telephone and written communications with forum residents. The basis of the malpractice suit there was the legal advice rendered during those communications. In Waterval v. District Court, supra, the Colorado court also found jurisdiction appropriate based solely upon the out-of-state attorney's telephone contacts and correspondence to the forum resident, where the cause of action related to the legal and financial counseling rendered during those communications.

Courts disagree dramatically whether additional contacts with the forum, such as travelling to the forum for client consultation or depositions and other investigatory purposes, will satisfy the purposeful availment requirement. In Culligan, supra, and Allen v. Columbia Financial Management, Ltd., 297 So.Car. 481, 377 S.E.2d 352 (1988), the requirement of purposeful availment was satisfied where the out-of-state attorney traveled to the forum to consult with the client. In contrast, the court in Sher v. Johnson, supra, held that an attorney's travel to the forum to meet with the client did not constitute purposeful availment of the privilege of conducting activities within the forum. In Dubree v. Myers, supra, the court found the attorney's travel to the forum to consult with the client and to depose the client's treating physicians satisfied the requirement. On the other hand, the court in Edmunds v. Superior Court (Ronson). 24 Cal.App.4th 221, 29 Cal.Rptr.2d 281 (1994), found that the attorney's travel to the forum for the client's deposition in the forum did not satisfy this requirement. In Austad Co. v. Pennie & Edmonds, supra, the court found no jurisdiction where the law firm's only contact other than communications with the forum resident was a three-day visit to the forum by an associate to review documents.

The apparent inconsistencies or different results in the case law may be attributed to courts' differing views on whether contacts with the forum are merely incidental to the out-of-state representation or invoke some type of benefits and privileges of the forum. In Sher v. Johnson, the court reasoned that the out-of-state legal representation does not itself establish purposeful availment of the privilege of conducting activities in the forum state, where the law firm is solicited in its home state and takes no affirmative action to promote business within the forum state. 911 F.2d at 1362. The court further reasoned that the attorney's travel to the forum to meet with the client regarding the representation did not constitute purposeful availment because the trips to the forum were incidental to the Florida representation. Id. at 1363.

In contrast to the Slier court's reasoning, the court in Dubree v. Myers focused on the benefits and protections invoked by the specific legal services performed within the forum, rather than looking to the out-of-state representation. The court found that the forum's benefits and protections applied not only to the attorney's taking depositions in the forum, but also to the attorney's conduct, activities, and relationships with other persons while he was in the forum solely on the resident's behalf. 464 F.Supp. at 445.

Other courts have taken yet different approaches. In Culligan, supra, the court focused merely on whether the attorney "purposefully directed" activities at the forum and intentionally provided legal services to a forum resident in the forum. In Ores, supra, 578 N.E.2d at 1145, it focused on the financial benefit derived from the activities directed at the forum's residents through the lawyer's billings for time spent on numerous telephone calls and correspondence with the forum resident and forum banks.

INTENTIONAL MISCONDUCT DURING

REPRESENTATION OF OUT-OF-STATE CLIENT

Courts have found the purposeful availment determination less problematic when intentional misconduct by the attorney is alleged, especially where his or her purposeful activity directed at the forum knowingly causes the injury to the client in the forum. See Trinity Industries v. Meyers & Associates, supra; Jenner & Block v. District Court, 197 Colo. 84, 590 P.2d 964 (1979); Edmonton World Hockey Enterprises, Ltd. v. Abrahams, 658 F.Supp. 604 (D.Minn. 1987).

In Lake v. Lake, 817 F.2d 1416 (9th Cir. 1987), the court relied on the "effects" test set forth in Calder v. Jones, 465 U.S. 783, 789 (1984),and the Supreme Court's distinction in Calder between untargeted negligence and intentional actions expressly aimed at the forum state. The Ninth Circuit found that the Idaho federal district court could exercise jurisdiction over the out-of-state attorney whose only contact with Idaho was the purposeful direction of a foreign act having effect in the forum state. There, the attorney was alleged to have engaged in tortious conduct in procuring an ex parte order intended to be used to gain custody of his client's child from her husband in Idaho. Lake, 817 F.2d at 1422.

Similarly, in Jenner & Block, the plaintiff corporation alleged that the out-of-state attorneys breached fiduciary duties owed to it by coercing its president to sign a contract which divested the client corporation of its interest in real property located in the forum. The Colorado Supreme Court found that the attorneys, through their intentional act, had reason to anticipate that their activities might have an injurious effect in Colorado. The Fifth Circuit Court of Appeals, in Trinity Industries, went so far as to assert "a lawyer accused of violating his or her professional obligations to a client is answerable not only where the alleged breach occurred but also where the professional obligations attached." 41 F.3d at 232.

GENERAL JURISDICTION OVER NONRESIDENT LAWYERS

Very few reviewing courts have been presented with the argument that they have general jurisdiction over an attorney or law firm in any lawsuit based upon substantial legal activities within the forum. Several courts have summarily found an out-of-state attorney's legal activities within the state could not establish general jurisdiction of the forum. See, e.g., Campbell v. Gasper, 102 F.R.D. 159 (D.Nev. 1984); Brown v. Watson, 207 Cal.App.3d 1306, 255 Cal.Rptr. 507 (1989). Few courts, however, have set forth the type of activities that could establish general jurisdiction.

In Myers v. Emery, supra, a Texas resident brought suit in Texas against an Oklahoma attorney and his law firm regarding a lawsuit they filed on his behalf in Oklahoma federal court. There, the court found that neither the law firm nor the individual attorney's contacts with Texas constituted the kind of continuous and systematic general business contacts to establish general jurisdiction by the Texas court over the attorney and firm. The law firm had advertised in Texas through Martindale-Hubbell and had provided an unspecified number of legal services to Texas clients. Two members were licensed to practice in Texas, one of whom graduated from law school in Texas. One lawyer owned mineral interests in Texas and had traveled to Texas on business and pleasure trips. The Texas court found that these contacts were minimal and fortuitous and not the result of the law firm's purposefully conducted activities within the state. 697 S.W.2d at 31.

In contrast, in Nikolai v. Strate, 922 S.W.2d 229, 239 (Tex. App. 1996), the court found that a Colorado lawyer's contacts with Texas were sufficiently continuous and systematic to allow Texas courts to exercise general jurisdiction over the lawyer, even though his actions in the Colorado lawsuits took place in Colorado, he never traveled to Texas in connection with the lawsuits, and all of his contacts with the client took place while he was in Colorado. The evidence of his contacts with Texas was extensive. The lawyer grew up in Texas and attended a Texas law school, lived and practiced in Texas from 1971 until 1984, and since his move to Colorado in 1984 had held himself out as a licensed Texas attorney on law firm letterhead and biographical listings in Martindale-Hubbell. The attorney handled at least 15 lawsuits in Texas courts since 1985 and traveled to Texas on at least 45 occasions. He maintained an ongoing relationship with one Texas client. Although he testified that he did not purposefully seek out legal business in Texas, the court found significant that he admitted that he purposefully and voluntarily traveled to Texas to appear in Texas lawsuits and purposefully maintained his Texas law license.

Having found substantial contacts with Texas, the court then asked whether the Texas court's assumption of jurisdiction over the Colorado attorney would "offend traditional notions of fair play and substantial justice." 922 S.W.2d at 239. It found that requiring a licensed Texas attorney actively practicing in Texas courts to submit to the jurisdiction of Texas courts does not offend traditional notions of fair play and substantial justice.

CONCLUSION

Without Supreme Court guidance, state and federal decisional law has varied in many respects regarding a court's constitutional power to hear a resident's malpractice suit against an out-of-state attorney. It is clear, however, that current decisional law allows a court to exercise jurisdiction in many instances even where the lawsuit or transaction which is the basis of the legal representation does not occur in the court's forum. In these circumstances, courts have scrutinized the lawyer's actions in undertaking the legal representation itself and in performing particular legal services within the forum.

An attorney's direct solicitation of the representation will likely subject him or her to the jurisdiction of the client's forum, and an attorney's general advertisements in the forum state may in future cases prove significant in finding a jurisdictional basis. Generally, the mere use of mails or telephone in consulting with the client will not subject an attorney to the foreign court's jurisdiction, unless the communication itself is the basis of the claim. Additional contacts with the forum, such as travelling to the forum for client consultation, depositions, or other investigatory purposes, will provide a jurisdictional basis under the decisional law in some states.

Lawyers should be cognizant that substantial legal activities in a foreign forum over a period of time could subject them to the foreign court's general jurisdiction in any lawsuit filed in the forum. Although the decisional law reflects very few instances where litigants have invoked a court's general jurisdictional power, the recent Texas decision in Nikolai v. State could serve as a catalyst for more litigants to file lawsuits on this jurisdictional basis.

The current status of the decisional law should not deter attorneys from opposing a foreign court's jurisdiction. The constitutional analysis derived primarily from commercial transactions does not easily fit into the professional representation context. Significant distinctions between attorney services and services rendered by commercial enterprises are factual bases for opposing the jurisdictional reach of courts. These distinctions could serve as a basis to urge higher courts to apply an analysis to legal malpractice actions that differs from the traditional analysis of jurisdictional issues. ■