Vol. 75, No. 2, February 2002

Status of Multijurisdictional Practice Debate

by Dean R. Dietrich

Question

I have heard that there is a proposal to allow lawyers to practice in other states without obtaining a law license in those states. What is the latest on this development?

Answer

The most recent development in the area of multijurisdictional practices (MJP) is the issuance of an interim report from the ABA Commission on Multijurisdictional Practices. This report, issued on Nov. 30, 2001, frames the debate on whether or not states should adopt revisions to Model Rule 5.5, which relates to the unauthorized practice of law. The report is available online at www.abanet.org/cpr/mjp-final_interim_report.doc.

The ABA Commission proposes a series of "safe harbors" that would allow an attorney to practice in another jurisdiction where he or she is not licensed by the state supreme court, provided the attorney qualifies under one of these safe harbor provisions. Other entities, including the American Corporate Counsel Association and the National Organization of Bar Counsel, have proposed a more simplified change to Rule 5.5 that would acknowledge the right of an attorney to practice on a temporary basis in another jurisdiction without being required to be licensed in that jurisdiction. Under either scenario, an attorney who is seeking to participate in litigation in a court in another jurisdiction where the attorney is not licensed (unlicensed jurisdiction) must follow the pro hac vice requirements of that state. The ABA Litigation Section and other entities have proposed a model pro hac vice rule that would standardize the procedures and requirements for obtaining pro hac vice status in any state.

Under the changes to Model Rule 5.5 proposed by the ABA Commission on Multijurisdictional Practices, the rule would provide that a lawyer "does not engage in the unauthorized practice of law when the lawyer represents a client on a temporary basis in this jurisdiction (where the lawyer is not licensed) if the lawyer's services do not create an unreasonable risk to the interests of the lawyer's client, the public or the courts." Allowable services for a client under this rule, if performed on a temporary basis by a lawyer who is in good standing in the home jurisdiction, include the following types of representation:

• The representation is taken by the unlicensed lawyer in association with a lawyer who is admitted to practice in the jurisdiction and actively participates in the representation;
• The services performed by the lawyer are services that may be performed by any other person without a law license or other authorization from the jurisdiction;
• The services provided by the lawyer are reasonably related to a pending or potential proceeding before a tribunal or administrative agency and the lawyer is authorized by law or court to appear in such proceeding;
• The services provided by the lawyer are reasonably related to a pending or potential arbitration, mediation, or other dispute resolution proceeding;
• The services provided by the lawyer are performed for a client who resides or has an office in the jurisdiction where the lawyer is licensed to practice or arise out of or are reasonably related to a matter that has a substantial connection to a jurisdiction in which the lawyer is admitted to practice; or
• The services provided by the lawyer are governed primarily by federal law, international law, or law of a jurisdiction in which the lawyer is admitted to practice.

In addition, a lawyer who is admitted to practice in one jurisdiction does not engage in the unauthorized practice of law in another jurisdiction if 1) the lawyer is an employee of the client and is acting on behalf of the client or its affiliates, or 2) the lawyer renders service in a jurisdiction pursuant to authority granted by federal law or the law or court rule of the other jurisdiction.

Under all of these safe harbor rules, the lawyer may not establish a permanent business presence (that is, open a law office) in the jurisdiction in which the lawyer is not licensed and may not hold himself or herself out to the public as being admitted to the practice of law in that jurisdiction.

The changes to Model Rule 5.5 proposed by the National Organization of Bar Counsel and the American Corporate Counsel Association contain two primary focuses:

1) the lawyer is not participating in the unauthorized practice of law if the lawyer is representing a client on a temporary basis in a jurisdiction in which the lawyer is not licensed and the lawyer so advises the client of his or her status; and

2) the lawyer is not participating in the unauthorized practice of law if the lawyer is employed by the client and is performing legal services for the client and has advised the client of his or her status of not being licensed in that jurisdiction.

Under this shorter proposed version of the model rule, the lawyer must comply with all pro hac vice procedures for the jurisdiction in which the lawyer is seeking to provide legal services and must be subject to all the rules of professional conduct in that jurisdiction. This rule is designed to give open-ended permission to lawyers to practice in jurisdictions where they are not licensed provided they are in good standing in the state in which they are licensed and they have advised their clients of the status of their nonlicensure in the jurisdiction.

Under these proposed changes to Model Rule 5.5, lawyers will be allowed to practice in jurisdictions in which they are not licensed to practice provided they meet the qualifications that are included in any proposed rule change. It is anticipated that the ABA Board of Governors will receive and debate the report from the Commission on Multijurisdictional Practices in August 2002.

Wisconsin Lawyer