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January 17, 2013 Articles

New ABA Rule on Practice Pending Admission

This is good news for lawyers on the move.

By Mary J. Bortscheller

Moving: Although it can mean exciting new opportunities, it also signals at least some amount of upheaval, expense, and heavy lifting. When lawyers move and plan to practice law in a new jurisdiction, they face an additional, daunting hurdle. They must seek admission to the bar of the new jurisdiction, which is an expensive and time-consuming prospect. Despite these hurdles in today’s legal marketplace, moving across jurisdictional lines is not uncommon. The legal job market remains uncertain, and many lawyers are willing to look out of state for new opportunities.

Relocation is not the only reason that a lawyer may seek admission in another jurisdiction. The ABA Commission on Ethics 20/20 acknowledges that technology and globalization “continue[] to transform the legal marketplace, with more clients confronting legal problems that cross jurisdictional lines and more lawyers needing to respond to those client needs by crossing borders (including virtually) and relocating to new jurisdictions.” ABA Commission on Ethics 20/20, Introduction and Overview to Commission Proposals, at 3 (Aug. 2012).

In August 2012, the ABA House of Delegates adopted revisions to the Model Rules of Professional Conduct and, along with them, the Model Rule on Practice Pending Admission. The new rule seeks to ease the challenges associated with changing jurisdictions by allowing a lawyer who is “license[d] to practice law in another U.S. jurisdiction and who has been engaged in the active practice of law for three of the last five years” to practice law in a new jurisdiction for a period of up to 365 days, provided that the lawyer meets several conditions. See Model Rule on Practice Pending Admission (as adopted Aug. 6, 2012). This new rule builds on the foundation laid by the ABA Model Rule on Admission by Motion, which provides that a lawyer seeking admission to a new jurisdiction may be admitted upon motion (rather than through the bar examination process) if the lawyer is in good standing in another U.S. jurisdiction and, among other things, has been “engaged in the active practice of law” for three of the past five years. See Model Rule on Admission by Motion (as amended Aug. 6, 2012).

Conditions for Practice Pending Admission
In promulgating the new rule, the ABA Commission on Ethics 20/20 acknowledged that a lawyer who relocates or starts practice in a new jurisdiction often does so on short notice, while the admissions process in most jurisdictions takes considerable time. Model Rule on Practice Pending Admission cmt. [1]. Recognizing the risk of unauthorized practice versus “leaving the lawyer’s clients without the benefit of their chosen counsel,” the new rule “closes this gap by authorizing the lawyer to practice in [the new] jurisdiction for a limited period of time . . . while the lawyer diligently seeks admission.” Id.

Of course, a lawyer who hopes to start practice in a new jurisdiction prior to gaining admission to the new jurisdiction must meet each of several conditions pursuant to the rule. It is therefore important that the lawyer understand and comply with each condition. In a hypothetical example, a lawyer, whom we’ll call Alice, wants to practice in California before gaining admission. (Note that California has yet to adopt a version of this new rule, and this is merely a hypothetical example of how the rule might operate if California adopted it.) Failure to meet any one of the conditions would bring Alice outside the scope of the new rule and potentially subject her to discipline for the unauthorized practice of law.

First, Alice must be in good standing in all jurisdictions in which she is admitted, which means she cannot have previously been disbarred or suspended from practice or currently subject to discipline in any jurisdiction. Further, Alice cannot previously have been denied admission to practice in California or have failed the California bar examination. These restrictions protect against the possibility that people who could not gain admission to a particular jurisdiction through traditional means would have an alternative route to authorized practice.

In addition, prior to starting her practice in California, Alice must notify the relevant disciplinary and admissions authorities in California, in writing, that she will be practicing there temporarily pursuant to this rule. Because the rule contemplates practice pending admission, Alice must submit a complete application for admission—by motion, if applicable, or by examination—for the practice of law in California within 45 days of beginning practice there. At the same time, Alice reasonably must expect that she will fulfill all the admission requirements of the new jurisdiction, California. These conditions ensure that the new rule does not become essentially an end run around pro hac vice admission or a way to practice temporarily in multiple jurisdictions without a real intention of joining the bar of the respective jurisdictions.

To practice pursuant to this rule, Alice also must associate with another lawyer admitted to practice in California. According to the rule’s comments, such an association could be quite simple, “akin to that between a local lawyer and a lawyer practicing in a jurisdiction on a temporary basis.” Id. at cmt. [2]. This means that lawyers in solo practice or not otherwise employed by an organization or firm can still meet the “association” condition of the rule if the lawyer has some kind of recognized relationship with a local attorney while that admission to the new jurisdiction is pending.

The new rule requires that Alice comply with Rules 7.1 and 7.5 of the Model Rules of Professional Conduct (or the California equivalent) by disclosing in all communications with potential clients her limited practice authority. This includes stating on all business cards, websites, and letterhead that her current authority to practice in California is pursuant to the rule and that her admission to the California bar is pending. In addition, Alice must disclose the same information to any potential clients prior to agreeing to represent them. Id. at cmt. [3]. Finally, Alice must pay any annual client protection fund assessment required of lawyers in the new jurisdiction, such as the Client Security Fund in California, which reimburses clients who have suffered losses due to the dishonest conduct of an attorney.

A Beneficial Rule for Young Lawyers and Employers Alike
Lawyers should welcome this latest model rule. It recognizes what the U.S. Census calls “the geographic mobility” of the profession and attempts to neutralize the considerable challenges associated with a move to another jurisdiction through the provision of a “grace” period pending admission. The rule does this while also protecting the bar by imposing reasonable rules on applicants. Moreover, the rule is helpful to employers who hire lawyers admitted in other jurisdictions because it allows the new hire to practice in the new jurisdiction while taking the necessary steps to gain the requisite admission, which enhances employers’ overall efficiency. The new rule responds logically to a new reality facing the profession, and it is a positive development for the legal community and the clients we serve.

Mary J. Bortscheller is an associate with Williams Montgomery & John Ltd. in Chicago, Illinois.