Legal Ethics: Crossing borders: Refining multijurisdictional practice rules

By Jim Doppke

We all know that a client’s right to the attorney of their choice is paramount. But what happens when a client located in one jurisdiction chooses to work with a lawyer who is not licensed in that jurisdiction? Can the lawyer offer to provide that client with legal services? The American Bar Association has long addressed the parameters of multijurisdictional practice through its Model Rule 5.5. But new fact patterns and scenarios often arise, requiring detailed analysis.

Once upon a time – that is, when it was promulgated in 1983 – Model Rule 5.5 simply and flatly prohibited practicing law “in a jurisdiction where doing so violates the regulation of the legal profession.” That odd phrasing really just meant that every lawyer has to be licensed somewhere, and they can’t practice where they wouldn’t be allowed to do so. The rule seemed not to recognize that there was, or could be, such a thing as interstate practice, or the complex issues arising from it.

The ABA made a few additions and refinements to Model Rule 5.5 in 2002, though it remains in much the same form as when initially adopted. The modified rule particularly helps to clarify that transactional lawyers can practice outside their jurisdiction of licensure temporarily if they either associate with a lawyer properly licensed in the other jurisdiction or if they confine their temporary practice to matters that are reasonably related to their regular practice.

Innovative practice offerings

But lawyers are always innovating new ways of providing services, and we can come up with methods that the drafters of the Model Rule 5.5 haven’t considered. For example: Let’s say a lawyer wants to offer a package of transactional services to businesses on a subscription-fee basis over a six-month period. The services would include contract templates that could be used in any jurisdiction; risk advice and strategic analysis; and copyright and trademark-related services. If the lawyer is licensed only in State X, can she offer her services to a State Y business?

The Illinois State Bar Association recently considered that fact pattern in Ethics Opinion No. 25-01. Illinois’ Rule 5.5 is essentially the same as the ABA’s Model Rule 5.5, so the Illinois opinion’s analysis of the issues will be helpful to any lawyer in a jurisdiction that has adopted the Model Rules. (Readers are advised to consult the applicable rules of professional conduct in their own jurisdiction, as these can sometimes vary.)

The Illinois state bar opinion first focused on whether the lawyer could practice temporarily in association with an Illinois-licensed lawyer. Per Model Rule 5.5, Comment 8, that would be permissible if the locally-licensed lawyer “actively participate[d] in, and share[d] responsibility for” the matter. [The opinion alludes to an obligation to obtain the client’s consent to employ the services of the locally-licensed lawyer. That is an Illinois-specific obligation not arising under the ABA Model Rules.]

Rules for practice

The committee then noted that the out-of-state lawyer could provide in-state services if those services “arise out of or are reasonably related to” the out-of-state lawyer’s practice. [See Model Rule 5.5(c)(4).] It explained that that reasonable relationship might exist if the lawyer had previously represented the in-state business; if the in-state business has contacts with the lawyer’s state; or if the matter in which the lawyer consults with the client may involve the law of the lawyer’s state.

Alternatively, the committee noted that the lawyer could provide the proposed services if they are authorized by federal law or rule. For example, the Illinois committee concluded, the copyright and trademark services that the out-of-state lawyer proposed would be authorized under Model Rule 5.5(d)(2) – without the need to associate with an in-state lawyer.

Opinion 25-01 thus clarifies that a lawyer seeking to provide multijurisdictional services is on the firmest ground when offering services that they are authorized to provide by federal law or rule. In fact, Model Rule 5.5(d)(2) allows lawyers to offer those services systematically and continuously, not just temporarily.

Other considerations

But what if the lawyer concentrates in transactional matters that involve a blend of federal and state law? What if they offer business advice that could apply to entities operating in any jurisdiction, but lack a specific grounding in federal law?

The opinion’s only clear answer to these questions is that the out-of-state lawyer can provide those services in association with an in-state lawyer. Yet such associations may be hard to come by, or may be unworkable in practice, especially given that the in-state lawyer must “actively participate in” the matter. Even if lawyers in different states can find a way to cooperate in offering legal services, the question of how to divide responsibility for transactional or advice-based services – and how to apportion fault for any errors or omissions – can be difficult to resolve, reducing the practical opportunities for effective collaboration. And if the in-state business wants to work with the out-of-state lawyer, but the lawyer can’t find an in-state associate, hasn’t the business been deprived of its choice of counsel?

The bottom line: Proceed with caution

Neither the rules nor Opinion 25-01 address the latter question. The history of Model Rule 5.5 suggests that the intent of the rule is not to hinder clients in that way, but also that lawyers must exercise caution when they seek to perform cross-jurisdictional. When the work calls for specific analysis of facts arising under or governed by the law of a jurisdiction where the lawyer is not licensed, the best approach is either to decline the work or to associate with a lawyer with the appropriate licensure. Doing so mitigates risks to the lawyer, while continuing to protect and respect the client’s choice of counsel.

 

Jim Doppke is a partner at Robinson, Stewart, Montgomery & Doppke in Chicago, Ill. His practice involves representing attorneys in legal ethics and professional responsibility proceedings. He can be reached at [email protected].