March 29, 2019

Ethical and Legal Issues in Multi-Jurisdictional Practice

Lawyers in the United States and Canada are generally licensed to practice by political subdivisions (“jurisdictions”), generally states or provinces.  Such licensure furthers the ability of the highest court in a jurisdiction to exercise control over, and administer, the practice of within that jurisdiction.  One justification for this local regulation is that it ensures that lawyers practicing in a particular jurisdiction are familiar with the laws of that jurisdiction. Regrettably, many clients and legal matters tend not to respect jurisdictional boundaries.  Multi-state or multi-national business dealings or litigation dealing with issues in one or more jurisdiction.  Further, the idea that lawyers licensed in a jurisdiction maintain competence in all aspects of the jurisdiction’s jurisprudence is an anachronistic concept dating back to the time when a lawyer might be called upon to handle anything from a capital criminal defense to a complex business transaction.  Most lawyers now tend to limit their practice to more focused areas of law so that business lawyer is likely to be more familiar with the business law of Delaware than the workers compensation laws of her or his home jurisdiction.

Practice of law by a lawyer licensed in one jurisdiction (the “home jurisdiction”) in another jurisdiction (the “host jurisdiction”) in which the lawyer is not licensed (“multijurisdictional practice” or “MJP”) may constitute unauthorized practice of law under the rules of the host jurisdiction and violation of home jurisdiction’s equivalent of Model Rule 5.5.   (Unauthorized Practice of Law; Multijurisdictional Practice of Law).  These strictures in some respects are intended to protect clients but may have the effect, if not the intent, to protect host state lawyers from competition. 

Over the past two decades, in the United States both the Model Rules of Professional Conduct and state rules governing unauthorized practice of law have been reviewed and relaxed to take into account several circumstances in which a home state lawyer is practicing in a host state including, in-house (or single-client) representation, pro hac vice practice, licensing of foreign legal consultants, military lawyers and their spouses, temporary practice, pro bono practice in the host state by home state lawyers, practice while awaiting admission on motion, practicing in non and others.  In each of these cases, the states have needed to develop rules either admitting the home state lawyers to practice, declaring particular activities not to be the unauthorized practice of law, or providing special limited licenses to practice under certain conditions.  Attendant to these rules, states have had to consider the application of rules such requirements with respect to continuing legal education, location for maintenance of trust accounts, participation in pro bono activities.