II. Background of MR 5.5
MR 5.5 has a history of adjusting to the times. In August 2002, the ABA revised MR 5.5, along with other rules, to allow more leeway for lawyers to advise clients regarding laws outside their licensing jurisdiction. In doing so the commission stated that because of the “globalization of business and finance, clients sometimes now need lawyers to assist them in transactions in multiple jurisdictions . . . or to advise them about multiple jurisdictions.” The ABA’s 2002 revisions to MR 5.5 sought to balance two competing interests—the interest of a jurisdiction in protecting the integrity of its justice system and its residents, the consumers of legal services, and the interest of clients with national and international operations in employing counsel capable of meeting their cross-borders needs. This latest proposal to add subsection 3 to MR 5.5(d) to facilitate multijurisdictional practice appropriately responds to these same interests.
III. The Proposed Rule in Practice
The District of Columbia already has a rule nearly identical to proposed MR 5.5(d)(3). Rule 49(c)(8) of the D.C. Court of Appeals (the body responsible for regulating legal professional conduct in the district) provides that attorneys who have timely filed for admission to the D.C. bar may practice law in the district for up to 360 days, under the supervision of a D.C. licensed attorney. The district’s many years of experience successfully implementing Rule 49(c)(8) confirms that the proposed addition to MR 5.5 of a temporary practice provision appropriately balances the two interests identified by the ABA in 2002. D.C. has had few issues with this easing of restrictions on multijurisdictional practice—a search of D.C. unauthorized practice of law opinions of the Court of Appeals Committee revealed less than a handful of claims brought under Rule 49(c)(8). Additionally, we have informally confirmed with D.C. practitioners that the rule works not only in theory, but in practice.
IV. Protecting the Practitioner
We believe a third interest is promoted by adoption of the proposed revision to MR 5.5—that of practitioners who may unwittingly subject themselves to disciplinary measures. Current MR 5.5 can trap practitioners moving to a new jurisdiction into inadvertently engaging in unauthorized practice. A lateral lawyer who has applied for admission to a new jurisdiction, but who has not yet been admitted, is frequently in an awkward suspension period. This gap period can create issues for both the attorney and those supervising that attorney.
Under existing MR 5.5, an attorney who has already moved to a new jurisdiction but is not yet admitted to that jurisdiction must either suspend legal practice altogether, prove that the work he or she is doing is not the practice of law, or prove that any legal work in the new jurisdiction falls within one of the narrow exceptions of current MR 5.5. Attorneys seeking admission in another jurisdiction must be prepared to answer a Character and Fitness Committee interviewer’s question: “And what, exactly, have you been doing here in X jurisdiction for the last nine months?” At least one state’s bar admissions authority asks the applicant, “Have you engaged in any work that could not be legally performed by a paralegal?” In addition, the lateral lawyer may not be the only one on the hook for having inadvertently engaged in the unauthorized practice of law during this gap period. In several jurisdictions (and under the Restatement (Third) of the Law Governing Lawyers, section 3), that attorney’s firm might also be accused of having assisted or induced another to engage in the unauthorized practice of law. The proposed addition of the temporary practice period in MR 5.5(d) (3) should both eliminate this potential trap and encourage prompt application for admission.
Conclusion
For the reasons described above, we urge adoption of the proposed addition of subsection (d)(3) to MR 5.5.
Brian F. Toohey is of counsel to Jones Day in Cleveland, Ohio, and serves as cochair of the ABA Section of Litigation Ethics and Professionalism Committee's Multijurisdictional Practice Subcommittee. Anne Marie Morris is a Jones Day associate
Endnotes
- American Bar Association, Report of the Commission on Multijurisdictional Practice (Aug. 2002), at 5.
- Id.
- While the Ethics 20/20 Commission noted that DC has not reported any problems arising from the rule, one opinion of the DC Court of Appeals Committee on the Unauthorized Practice of Law reveals a potential loophole in the proposed safe harbor of (d)(3). Contract attorneys admitted elsewhere could theoretically take advantage of the safe harbor by moving to another jurisdiction, undertaking a short term project there, and applying for admission, all without actually intending to be admitted. Opinion 16-05 of the DC Court of Appeals Committee on the Unauthorized Practice of Law appropriately concludes that a contract attorney who falls within the temporary practice safe harbor provision of Rule 49(c)(8) can nevertheless engage in the unauthorized practice of law if his or her work in D.C. is not of incidental or occasional duration. If subsection MR 5.5 (d)(3) is adopted, the ABA may want to include a comment to the same effect.
- See MR 5.5(c) and (d). The non-admitted attorney typically must either: (1) associate herself with an admitted attorney who actively participates in the work; (2) practice only federal law; (3) practice only in some specialized area of law explicitly carved out by that jurisdiction; or (4) show that any work conducted in the jurisdiction where she is not admitted arises out of or is reasonably related to her practice in a jurisdiction where she is admitted.
- See M.R. 8.4(a).