- Everyone seems to agree the Rule 5.5 is out of date.
- Key ethics groups have proposed smart changes.
- States are struggling with the rule too, but no one has gone far enough yet.
In April 2022, the Association of Professional Responsibility Lawyers (APRL) issued a letter, proposed revisions to Rule of Professional Conduct 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law, and a Report on the Future of Lawyering. In the report, APRL stated:
The proposed revision recognizes that ethics rules will continue to govern the conduct of lawyers and require competence in the delivery of legal services provided; acknowledges that courts and other tribunals have the inherent power to control who appears before them; and embraces the fact that technology has fundamentally changed the ease with which clients and lawyers work together over vast distances.
The report offers a slew of powerful arguments why Rule 5.5 is anachronistic and needs revising now.
An exploration of the history of the restriction of the practice of law shows that it was not always this restrictive. Colonial America permitted those who passed the English bar or served an apprenticeship to practice law.
After the Revolution, requirements for bar admissions became progressively less restrictive, because admission practices were thought elitist, and therefore “contrary to democratic ideals.” Industrialization gave rise to concerns of competency and character, leading to the ABA 1921 Root Report, which created the route of law school, bar exam and bar admission by state.
The Root Report logic was centered on e two primary concerns, efficiency and character, the latter being the most problematic. There was a desire to “purify the stream at its source” by creating a standardized system of training and evaluating lawyers for fitness. But, as it so often is, “character” scrutiny was a thinly veiled way to exclude certain gender and ethnicity groups or those deemed problem applicants from admission.
By the 1930s most state legislatures outlawed the unauthorized practice of law. By 1969, ABA Model Code of Professional Responsibility Cannon 3 stated “A Lawyer Should Assist in Preventing the Unauthorized Practice of Law.” The ABA Code cites a 1967 Supreme Court decision that clearly establishes broad state power “to regulate the practice of law[.]” However, this tension is still present and problematic because the business of (industrialized) clients could involve legal problems of several states.
Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so. However, the demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice.
Model Rule of Professional Conduct 5.5 was first promulgated in 1983, providing that a lawyer could not practice law in violation of that jurisdiction’s regulation of the legal profession or assist another in the unauthorized practice of law. Rather than simplifying things, confusion continued, because cases and clients continued to be complicated and cross-border. It isn’t given much attention though, until the Birdbrower case in 1998 denied a (presumably big) New York firm a (presumably big) payday on a California settlement on the grounds that they committed the unauthorized practice of law. Business as usual, working where their clients wanted was not a sure bet anymore.
In 2002 the ABA eventually tried to fix Rule 5.5 by recognizing the business-as-usual nuances more, noting in-house-counsel exceptions among others. It recognized state tribunals’ rights to regulate who appeared before them and tried to articulate the local lawyer preference because of their better understanding of the unwritten expectations and a “lawyers' ties to the particular communities in which they maintain their offices, jurisdictional restrictions may also help maintain an active and vibrant local bar[.]”
What the Report doesn’t elaborate on is that the 2002 exceptions were a start, but never sufficient to address the myriad complexities of different clients and practice areas. Many lawyers continued to fly under the radar, practicing law from wherever they were to the great satisfaction of their clients, but not really in line with any exception present. And the states struggled with the ABA’s new Rule 5.5, adopting many variations of the rule to try to address the issues they saw, or the case law growing up around this issue.
APRL makes an obvious point that technology and communication advancements have made borders superficial.
It makes a sound argument that exceptions have been made through lobbying efforts in about 30 states for military spouses and that the sky hasn’t fallen in the lawyer discipline world with this subset. What the Report doesn’t mention is that many lawyers limit themselves to a federal practice area such as patent, immigration or bankruptcy. These lawyers are authorized to practice in any jurisdiction if they are barred in a state, established by Code of Federal Regulations and Sperry v. Florida. No sky falling there either.
But, back to the Report, where the best is yet to come with the argument that borders further exacerbate access to justice issues by limiting lawyers to one state when they could help just across the border in another state’s legal services desert. One might imagine an Idaho lawyer wishing they could cross into Washington and help in Spokane and other more rural markets.
Where the Report really eviscerates the “local lawyer is the only competent lawyer” argument is when pointing out the paradox between licensing lawyers to practice in any practice area without further specialization requirements, regardless of complexity of law or anything but a license, but presuming another state’s laws are somehow incomprehensible or inaccessible to them. Isn’t it preposterous that a lawyer who has practiced for years and is very good cannot learn another state’s rules?
And the second clincher focuses on client choice. The Report lists all the ways a client’s right to choose is a cornerstone to the profession, but then in this one thing we take the choice away. If a client prefers a lawyer, it should be so, they say.
Finally addressed is the argument of pro hac vice or reciprocity as the answer. The simple answer to that is they are slow, expensive, different all over, and not an answer in all circumstances or states. In other words, these options are too narrow of a pathway to practicing in another state to fit many lawyers.
The ABA Center for Professional Responsibility was also proposing a new Rule 5.5 that didn’t go quite as far as APRL’s national driver’s license to practice law. It said, among other things:
A lawyer who provides legal services in this jurisdiction shall:
(1) Disclose where the lawyer is admitted to practice law.
(2) Comply with this jurisdiction’s rules of professional conduct, including but not limited to Rule 1.1 (Competence), and with the admission requirements of courts of this jurisdiction.
(3) Be subject to Rule 8.5 regarding the disciplinary authority and choice of law rules of this jurisdiction; and
(4) Not assist another person in the unauthorized practice of law in this, or any other, jurisdiction. Rule 5.5(c).
At the end of 2022, I, with Micah Buchdahl, authored an article for Law Practice Today where we debated the likelihood of state adoption of any new rule, Buchdahl being the skeptic and me being the optimist. Since then, I’ve lost some hope. It seems the nation is at a standstill in so many things, and this is just one more. No matter the logic of it, the simplicity of it, the joyous potential of finally having a widely usable and versatile license for all lawyers, it would mean states would give up a tiny modicum of power. Little fiefdoms everywhere protest the tides of change. We must wiggle and push their stick-to-itiveness until we break the bonds of Rule 5.5.