Multijurisdictional practice – Some variations under Rule 5.5

Multijurisdictional practice – Some variations under Rule 5.5

ABA Model Rule 5.5 ABA Model Rule 5.5 lists among the exceptions to unauthorized practice that a lawyer does not commit unauthorized practice if he or she represents a client on a temporary basis in a jurisdiction where the lawyer is not admitted to practice if the legal services “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

The several jurisdictions have adopted slightly modified versions of this rule, all of which focus on the relationship between the lawyer and the practice in the jurisdiction is admitted.

When lawyers are considering whether they could be retained in a multijurisdictional case, the first problem that they have is which version of Rule 5.5 they should apply. Rule 8.5 is the first step of the analysis. When there a proceeding pending, Rule 8.5(a) provides that the rules of the tribunal are the ones to be applied. Therefore, the lawyer should look at Rule 5.5 of the jurisdiction in which the lawsuit is pending (if one is pending). If there is no proceeding pending (for example a lawyer is asked to negotiate a certain matter on behalf of a client in a jurisdiction different from which he or she is admitted), the lawyer must consider Rule 8.5(b) which says that the applicable rules are those of the place where the conduct occurs or, if the predominant effect of his or her conduct will ensue in a different jurisdiction, the rules (and therefore Rule 5.5) of this latter jurisdiction. For our purposes, where does the conduct occur when a lawyer sends a letter to a party based in a jurisdiction different from the jurisdiction in which the lawyer is admitted? In the place in which the lawyer is based or where the letter is received? And also, should we look at the predominant effect of this conduct instead? There is not a single answer to these questions. However, an answer is particularly important in cases where the applicable rule of conduct diverges. This is the case for Rule 5.5.

For example Florida Rule 5.5. provides — among other exceptions to unauthorized practice — that a lawyer not admitted in Florida “may provide legal services on a temporary basis” in Florida if the client is a resident or has an office in the jurisdiction in which the lawyer is admitted OR are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. Florida Rule 5.5. is also applicable to non-US attorneys. This is a very liberal rule and it is wider than the Model Rule 5.5.

There are jurisdictions that have adopted the ABA Model Rule 5.5, for example Iowa and Georgia.

Georgia Rule 5.5, which like Florida has a part dealing with foreign lawyers, has adopted ABA 5.5.for the part that we are discussing here: a lawyer not admitted to practice in Georgia may provide legal services in Georgia on a temporary basis if they “arise out of or are reasonably related to the Domestic Lawyer’s practice in a jurisdiction in which the Domestic Lawyer is admitted to practice.” Virtually identical for this part is Iowa Rule 5.5.

South Carolina has a more restricted version of Rule 5.5. SCRPC 5.5 added to the ABA version the requirement that the legal service performed by the attorney not admitted in SC must be performed in connection with the representation of an “existing client” (“arise out of or are reasonably related to the lawyer’s representation of an existing client in a jurisdiction in which the lawyer is admitted to practice.”) There is no provision for foreign lawyer.

North Carolina’s version of Rule 5.5 is similar to Model Rule (for this part): no unauthorized practice for that US lawyer not admitted in NC if this lawyer “acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer’s representation of a client in a jurisdiction in which the lawyer is admitted to practice and the lawyer’s services are not services for which pro hac vice admission is required.” It should not go unnoticed that this Rule, unlike the ABA Model Rule, talks of “client” instead of “lawyer’s practice”, which is somewhat more restrictive. However, unlike SC, the “client” in question does not have to be “existing”, but it might be interpreted that way.

North Carolina goes even further, allowing the establishment of an office by a lawyer not admitted in North Carolina in certain circumstances. Provided that the non-admitted lawyer (both US lawyer and foreign lawyer) does not advise on North Carolina law, he can establish an office in and provide “services limited to federal law, international law, the law of a foreign jurisdiction or the law of the jurisdiction in which the lawyer is admitted to practice, or the lawyer is providing services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.”

There are also jurisdictions that have not adopted exceptions to unauthorized practice of law. New York, for example, has not adopted the ABA Model Rule 5.5. NY Rule of Professional Conduct 5.5 simply provides: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” While on a hasty reading, this rule seems restrictive, the Rule can be read to allow some leeway based on a case-by-case evaluation of the circumstances because the statute is quite vague (NY Code – Section 6512: Unauthorized practice a crime “Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts”. Entire statute here) Unauthorized practice in New York is now a felony, not a misdemeanor as it used to be – see here. Also (from the same source): “Section 476(d) of the Judiciary Law allows the New York State Attorney General to prosecute violations of the Judiciary Law based on the unlawful practice of law.)

For a guidance on the situation of a lawyer not admitted in California, in particular for lawyers facing multi-jurisdiction practice issues, read What Can Non-Admitted Attorneys Do in California without Violating the State Bar Act?

Conclusion: Multijurisdictional practice is quite common, but the rules vary from jurisdiction to jurisdiction. Don’t assume that you can engage in cross-jurisdictional practice simply because your conduct is temporary and does not involve an appearance before a tribunal. Also, don’t simply check the rules of your jurisdiction. After an analysis of your prospective conduct under Rule 8.5, check carefully the rules of the jurisdiction where your conduct can occur or have an effect.

 

Nathan Crystal & Francesca Giannoni-Crystal

 

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