Legal Ethics: Unauthorized practice or a glimpse into the future?
By Sari W. Montgomery
For the past 100 years, admission to the bar has been regulated by individual state supreme courts. During that time, admission requirements from state-to-state have varied somewhat, but generally include graduation from a law school accredited by the American Bar Association, passing that state’s bar examination, being certified as having the requisite moral character and fitness to practice law, and, for the past few decades, passing the Multistate Professional Responsibility Examination.
In the early years of the 20th century, admission requirements were often thinly veiled attempts to exclude certain groups of applicants based on race or gender. More recently, these requirements have remained in place in the name of client protection. Ostensibly, only lawyers who are trained in a specific state’s law, and who are able to pass that state’s unique bar exam, were qualified to provide legal services to the residents of that state. Those who fulfill these requirements earn a license to practice law in virtually any practice area, but only “in” the particular geographic jurisdiction in which the lawyer has been licensed. Maintaining a systematic or continuous presence in, or attempting to regularly represent clients from, jurisdictions in which the lawyer is not licensed, could subject the lawyer to charges of engaging in the unauthorized practice of law, which can have both criminal and disciplinary consequences. See, e.g., ABA Model Rule of Professional Conduct 5.5.
But what does it mean to practice law “in” a state in an age when the statutes and case law of any state are just a few keystrokes away; meetings, depositions, mediations, arbitrations, and even trials are now regularly held remotely; and transactional and litigation matters often transcend geographic borders? Add to that the fact that 41 states and U.S. territories now administer the Uniform Bar Examination which means that, within a generation, the majority of lawyers across the country will have passed exactly the same test in order to be licensed, regardless of where they apply for admission and the particular law of that state. One of the lessons learned from the Covid-19 pandemic, when many lawyers relocated to homes in warmer or more rural states, was that lawyers actually can still service their clients competently, even when they are not physically located in the state in which they are licensed.
The idea that lawyers who are licensed in a particular jurisdiction are more competent than those who are not so licensed, also discounts the prevalence of specialization that has arisen in the profession in recent years. Under the current regulatory framework, a lawyer who is licensed in any particular state is “qualified” to undertake representation in any practice area. For example, a lawyer who has exclusively practiced real estate law for 20 years in one particular jurisdiction is eligible to handle a personal injury matter in that jurisdiction. In contrast, a lawyer licensed only in a neighboring jurisdiction who has practiced tort law for 20 years would generally be prohibited from regularly taking on personal injury matters in the jurisdiction where the lawyer is not licensed, even though that lawyer is likely more qualified to handle, and would likely better serve a client in, a personal injury matter than the locally licensed real estate lawyer. This discrepancy can also have an outsized impact in rural areas and legal deserts, where there may be a shortage of lawyers qualified in particular practice areas.
Against this backdrop, envision a world in which a lawyer’s practice, once the lawyer is admitted in any U.S. jurisdiction, is unrestricted by artificial geographic boundaries, but rather is limited only by the lawyer’s ability to competently represent clients in a particular area of law and, in litigation matters, by the rules of the particular court before which the lawyer is appearing. This vision is not science fiction. In fact, it is reflected in a recent proposal by the Association of Professional Responsibility Lawyers (APRL) to amend the Model Rules of Professional Conduct, as well as in a similar draft proposal being considered by the American Bar Association. Specifically, the APRL proposed amendment to ABA Model Rule 5.5 provides, in part, as follows:
- A lawyer admitted and authorized to practice law in any United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction, subject to the other provisions of this rule.
- Only a lawyer who is admitted to practice in this jurisdiction may hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
- A lawyer who provides legal services in this jurisdiction shall:
- Disclose where the lawyer is admitted to practice law;
- Comply with this jurisdiction’s rules of professional conduct, including but not limited to Rule 1.1 (Competence), and with the admission requirements of courts of this jurisdiction;
- Be subject to Rule 8.5 regarding the disciplinary authority and choice of law rules of this jurisdiction; and
- Not assist another person in the unauthorized practice of law in this, or any other, jurisdiction.
This proposal still prioritizes public protection by requiring the lawyer to act competently and to be transparent with clients and the public about the lawyer’s licensure, but is much more consistent with the realities of the global practice of law in the 21st century than the existing ABA Model Rule 5.5, which is premised on the outdated notion that most lawyers’ practices are confined to a particular geographic area, and that legal services are sufficiently affordable and available to all who need them.
Modernizing the ethics rules to reflect the reality of the virtual and multi-jurisdictional practice of law in the 21st century, and to focus on competency, rather than geographic location, would benefit both the legal profession and the public by enhancing clients’ ability to choose the best lawyer to meet their needs, and making legal services more broadly accessible for consumers.
Sari Montgomery is a partner at Robinson, Stewart, Montgomery & Doppke in Chicago, Ill. Her practice involves representing attorneys in legal ethics and professional responsibility proceedings. She can be reached at [email protected].