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February 05, 2023

Overhaul of model rule on cross-border practice initiated

With technology changing both the profession of law and client needs, a working group of the American Bar Association is looking at whether model rules should be amended to catch up to the post-COVID world.

The American Bar Association Center for Professional Responsibility Working Group on Model Rule of Professional Conduct 5.5 explored possible changes at the 2023 ABA Midyear Meeting in New Orleans on Saturday, Feb. 4, and a consensus emerged that the rule needs attention. The differences of opinion, however, related to just how much.

“We are all thinking this is a problem,” said Lynda Shely, chair of the ABA Standing Committee on Ethics and Professional Responsibility and an Arizona attorney. But she added that some “question if it is a solution in search of a problem.”

The hourlong discussion was billed as an “informal information gathering session on cross-border practice” with the goal of developing “an ideal multijurisdictional practice rule” that both supports service to clients and protects them. The working group is expected to have further discussions and decide how much data is necessary before deciding the best approach on what, if any, changes should be made.

The current Model Rule 5.5 of the ABA Model Rules of Professional Conduct stipulates that a lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice but also allows for temporary cross-border practice if certain conditions are present or actions are taken.

The aspect of the rule dealing with multijurisdictional practice primarily affects attorneys dealing with transactions, such as real estate matters, because lawyers litigating a matter may seek pro hac vice admission. For example, a multistate real estate deal might involve a company purchasing from another 100 properties spread over 20 states. In many cases now, the purchaser’s counsel would have to enlist local counsel — which is costly for the client and many times not necessary to protect the client.  

Dave Majchrzak, chair of the working group, said the effort is focused on both what is necessary to protect the public and to allow the lawyer to provide services.

Last April, the Association of Professional Responsibility Lawyers, an influential lawyers’ group, asked the ABA to consider a replacement for Model Rule 5.5 “to better reflect the way lawyers practice in the 21st century.” The APRL proposal advocated that a lawyer admitted in any U.S. jurisdiction should be able to practice law and represent clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided and without regard to which jurisdiction’s rules apply at a given moment in time.

Its proposed new Model Rule 5.5, the group said, “would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.”

In the Feb. 4 discussion, that approach received some support. Thomas Kauffman, who was speaking on behalf of the American College of Real Estate Lawyers, noted the “electronic age” has changed lawyering for many subfields and much “can be from virtually any location.”

“We believe Rule 5.5 needs to be updated and revised to meet many of these changes …and the realities of a transactional practice,” he said.