chevron-down Created with Sketch Beta.
August 24, 2022

Ethics: No More Sneaking Around?

Lucian T. Pera
Model Rule 5.5 appears to work from the presumption that a lawyer has a work home somewhere where they are licensed. That’s just not always true.

Model Rule 5.5 appears to work from the presumption that a lawyer has a work home somewhere where they are licensed. That’s just not always true.

Xixinxing / Getty Images

More than a quarter century ago, in simpler times, a leading legal ethics professor published an article, “Sneaking Around in the Legal Profession: Interjurisdictional Unauthorized Practice by Transactional Lawyers.” Only ethics nerds—and only a few of us—noticed.

The ‘Big Bang’

But then the “Big Bang” of multijurisdictional practice (MJP) happened. The California Supreme Court issued its 1998 decision in Birbrower, Montalbano, Condon & Frank v. Superior Court. The court found that New York lawyers who represented a California company in a dispute with another California company, subject to arbitration in California, under California law, and did most of the work in California, had committed the unauthorized practice of law (UPL). That meant they could not enforce their engagement agreement (which chose California law as applicable) to collect their fees.

While the lawyers might still be entitled to quantum meruit recovery for their fees, the court gratuitously observed that “one may practice law in the state ... although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.” Yikes. We non-Californians could engage in UPL in California without leaving our offices ... or homes.

The Revolution Comes

The ethics world scrambled. And the term “MJP” for “multijurisdictional practice” was born. The ABA launched a commission. After much work, they came up with the (then) elegant solution of ABA Model Rule 5.5. Twenty years later, more than 40 U.S. jurisdictions have adopted versions.

The approach of Rule 5.5 was a bit complex. A jurisdiction adopting it:

  • Confirmed the ban on lawyers engaging or assisting in UPL.
  • Banned out-of-state lawyers from opening “an office or other systematic and continuous presence in this jurisdiction for the practice of law” or holding out that they are licensed in the adopting jurisdiction.
  • Specifically authorized out-of-state lawyers in good standing to temporarily practice in the adopting jurisdiction in limited circumstances, including while associating local counsel, in a matter where they reasonably expected to be admitted pro hac vice anywhere, in ADR matters, and where the work arose out of or was reasonably related to a practice in the lawyer’s home jurisdiction (and where pro hac vice admission is not required in the host jurisdiction).
  • Authorized permanent practice for in-house counsel and practitioners authorized to practice by federal law (e.g., patent lawyers).

Adoption by the Jurisdictions

The jurisdictions that adopted the Rule strayed from the model in places. Some adopted additional requirements for in-house counsel (e.g., registration). Others amended the catch-all reasonably-related-to-the-lawyer’s-home-practice exception, often to make it more restrictive.

The adoptions varied a good bit—enough so that any lawyer looking for answers before venturing into a new jurisdiction needed to carefully read that rule. Still, they would mostly know where to start looking.

Two decades ago, Rule 5.5 was groundbreaking. Today, not so much.

The Problems With 5.5

Much has changed since the Rule’s adoption in 2002.

By the time Birbrower was decided in 1998, many clients’ legal needs had grown to be multistate and national.

Since then, the internet has dramatically accelerated that change in client legal needs. Because lawyers serve clients with increasingly multijurisdictional and national legal problems, lawyers’ need to be able to practice across jurisdictional lines has skyrocketed.

This need by lawyers to practice across borders is by no means a purely BigLaw problem. It’s common for a divorce or trusts and estates lawyer to have ordinary clients with legal issues that span borders, from child custody to ownership of real property. As the economy globalizes, small businesses commonly deal with suppliers and customers across the country or around the world. Firms small and large face these issues, and smaller firms are less likely to have a lawyer handy down the hall who’s licensed in a faraway state.

The once-elegant scheme of Model Rule 5.5 has become ill-suited to our times.

The distinction between permanent and temporary practice—i.e., between the Rule’s language of “an office or other systematic and continuous presence in this jurisdiction for the practice of law” and temporary practice—seems frayed and difficult to apply.

The Meaning of ‘In’

The Rule also assumes that, whether for each act the lawyer performs or perhaps for each legal service the lawyer renders, the act or service is rendered some- where. For example, the central innovation of the Rule permits a lawyer, in certain situations, to “provide legal services on a temporary basis in this jurisdiction.”

No ethics lawyer need be consulted to realize that, as the California Supreme Court recognized back in 1998, it’s conceivable that I could practice law in a state without ever setting foot there—or maybe in several states at once, depending on the task.

Sure enough, in 2016, the Minnesota Supreme Court disciplined a Colorado lawyer for UPL where the lawyer, entirely by email, tried to negotiate down a Minnesota judgment against his in-laws. He never set foot in Minnesota to render these legal services.

Remote Work

The rise of remote work in the profession, with the blessing of ABA Formal Opinion 495 and other authorities, highlights another problem. Model Rule 5.5 appears to work from the presumption that a lawyer has a work home somewhere where they are licensed and has an office. That’s just not always true. Nor do the rules in the vast majority of jurisdictions ever require a lawyer to have an office anywhere.

Hope On The Horizon?

Fortunately, there may well be a solution.

On April 18, 2022, the Association of Professional Responsibility Lawyers (APRL), the national group of ethics lawyers, published and transmitted to the ABA a very specific proposal to rewrite ABA Model Rule 5.5 and fully and permanently fix the MJP issue.

You can see the full proposal and report here. But the approach is simple.

Simple Conditions

Under this proposal, any lawyer licensed in any U.S. jurisdiction, and not suspended or disbarred, may provide legal services in the adopting jurisdiction, with certain conditions: The lawyer must disclose to clients where they are licensed to practice law, comply with adopting jurisdiction’s ethics rules and be subject to discipline by that state’s lawyer disciplinary authority. The proposed rule continues the long-standing prohibitions on assisting others engaged in UPL and holding out that one is licensed where one is not.

Notice the lack of any carefully limited grants of permission to temporarily practice in the adopting jurisdiction. Likewise gone are bans on opening an office or other “systematic and continuous presence.” Can you feel the fresh air blowing?

Included with the APRL proposal is a fine supporting report, setting out a detailed case for their approach.

Several years back, the good folks at APRL also brought the ABA a proposal to reform the lawyer advertising rules that eventually led to the ABA’s much-needed 2018 revision of ABA Model Rules 7.1–7.5. Word is that the ABA Center for Professional Responsibility has set up a working group on drafting a possible reformed Rule 5.5.

A Long Path

Even if the ABA House of Delegates was eventually to adopt the APRL proposal or something like it, the jurisdictions would then each have to consider it.

That prospect may seem terribly daunting, but you should know that, when Rule 5.5 was adopted in 2002, it was entirely unclear whether any jurisdictions would even adopt its broad approach, much less its substance. Looking back, despite the variations in adoption, more than 40 jurisdictions did adopt its framework and much of its substance. That was a dramatic advance in the law and in lawyers’ ability to serve clients, where clients need them.

Something You Can Do

If you like the APRL proposal—or maybe even if you don’t—I urge you to communicate your comments on it to the ABA President ([email protected]) and directly to Lynda C. Shely ([email protected]), the chair of the ABA Standing Committee on Ethics and Professional Responsibility. They need to hear from lawyers.

And who knows, maybe, just maybe, this could lead to no more sneaking around by lawyers serving their clients.

Lucian T. Pera

Partner, Adams and Reese LLP

Lucian T. Pera is a partner in the Memphis, Tennessee, office of Adams and Reese LLP. He counsels lawyers, law firms, clients and those who do business with lawyers and law firms on ethics and professional responsibility issues. He is past president of the Tennessee Bar Association and a past ABA treasurer. [email protected]

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.