Practice in the New Normal: multi-state practice, unauthorized practice, authorized practice and just a touch of reality.
Jeff Cunningham
Outside General Counsel for Law Firms | Ethics Advice, Legal Malpractice Defense & Holistic Law Firm Risk Management | I cram legal ethics into memes and movies
Model Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) provides for lawyers practicing in jurisdictions where they are not admitted to the bar.
For worse or worser, South Dakota is the only state that adopted Model Rule 5.5 verbatim.
Generally, the Rule prevents lawyers from establishing an office or continuous presence in a jurisdiction they're not admitted in and holding themselves out as a lawyer admitted in that jurisdiction.
Depending on the state, lawyers can generally practice in a non-admitted state if:
? the work is on a 'temporary basis';
? they work with an admitted lawyer;
? they are seeking admission, including admission pro hac vice; or
? reasonably related to the lawyer's practice and not services that require pro hac vice admission in that state.
Certain states also provide for in-house attorneys to be admitted or registered to some extent.
Regardless, the lawyer remains subject to discipline in the jurisdiction they're working in and every jurisdiction in which they're admitted.
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So, "it depends." But what is an attorney in the reality of the New Normal to do?
Let's assume for work that is not before a Court: Attorney is in State A, working with Associate in State B, technically out of their office in State C, for Client in State D, with the Client Rep in State E.
What if Attorney is admitted only in State C or in States C and D? It depends.
What if Attorney, Associate, Client and Client Rep are in State A but deal with services or property in States B, C, and D? It depends.
What if Attorney is only admitted in State A but Associate is admitted in State D? It depends.
The ABA has noted there is no bright line rule when 'temporary' practice crosses over into 'continuous' - in fact there's not really even a blurry line.
Each states' rules and applicable law must be reviewed before any engagement is entered into and the attorney's status should be made explicitly clear, in writing, to every impacted client.
At the outset, come up with a metric - the percent of time spent, the number of days spent, etc. - and plan to decide when your out of state practice changes from temporary to continuous.
Err on the side of seeking admission, protect your practice and clients.
Attorney Extraordinaire | Proud Mama Balancing Life's Adventures with a Mini Me | Strategic Problem-Solver | Client Advocate & Champion of Unparalleled Client Experiences
1 周It is time that the rules caught up to the times. For transactional lawyers in large firms, this is not an issue that typically becomes a problem as there is almost always a partner licensed somewhere who can act as a supervising attorney. However, the example you gave represents a real life issue for a solo practitioner in the transactional world. Is their practice limited to representing clients in their licensed state? What if the client is resident in another state, but has a vacation rental or office in or other affiliation with the licensed state? What about when the governing law of a contract they are reviewing for an in-state client is governed by the laws of a state where the attorney is not licensed? Can the attorney advise on the agreement? How about when the counterparty is out-of-state, but the other parties are in the licensed jurisdiction and the agreements are governed by the laws of the licensed jurisdiction, but the transaction drags on and requires calls to and meetings in the other jurisdiction for an extended period of time? The way law is practiced today, especially post-pandemic, these rules are just unnecessarily stifling the practice.
Legal Advisor to Great Companies
1 年As legal practice continues to get more and more virtual, the rules must evolve to accommodate. I’ve come up against this many times as in house counsel in the past, and now as solo business transaction lawyer. Helping someone in another state who needs a contract should be a no-brainer, not a grey area.
CCR, RPR, CSR
1 年Next make it happen for court reporters, please. We get tangled up in notary requirements. Seems there should be an exception for depos.
Attorney | Problem Solver | Consultant | Manager | Teacher | Author.
1 年This issue really needs to be re-examined on a fundamental level.