.

Friday, October 25, 2019 12:00 PM – 1:15 PM

Workshop 27

Are You Present?—The Ethics of Practicing Here and There

Presented to

2019 ICSC U.S. Shopping Center Law Conference Marriott Marquis San Diego Marina

San Diego, CA October 23-25, 2019

by:

Randy J. Curato

Attorneys’ Liability Assurance Society

311 S. Wacker Drive Chicago, IL 60606 rjcurato@alas.com

Neil J Wertlieb Wertlieb Law Corp

15332 Antioch Street, Unit 802 Pacific Palisades, CA 90272

Neil@WertliebLaw.com www.WertliebLaw.com

Are You Present—The Risks of Practicing Here and There

Introduction

Whether it is physically or virtually, lawyers often engage in the multijurisdictional practice of law (MJP) when they are called on to negotiate, advise, litigate, or otherwise render legal services to clients in jurisdictions where they may not be admitted to practice. Charges of the unauthorized practice of law (UPL), however, are rarely the basis for malpractice claims against. Typically, these charges are thrown in to create a presumption of negligence or wrongdoing against the out-of-state lawyer even when there are substantive grounds for a malpractice claim. Disciplinary authorities may bring charges against an out-of-state lawyer who has systematically and continuously provided legal services in a particular jurisdiction without being admitted there. Sometimes those charges are generated by complaints from local lawyers or bar associations. UPL charges most commonly arise when a firm asserts a claim for fees against a client located in an out-of-state jurisdiction, and the work was performed in, or related primarily to, a jurisdiction where the lawyer was not licensed to practice.

Most states have adopted the ABA Model Rule on multijurisdictional practice. See ABA Model Rule 5.5. Detailed information on the status of MJP rules reform in a particular state is contained in a chart maintained by the ABA. See ABA, State Implementation of ABA MJP Policies. According to the ABA, as of late 2016, rules like Model Rules 5.5 and 8.5 have been adopted in most states (all except Hawaii, Mississippi, Nevada, and Texas) and in the District of Columbia. Alabama has adopted a rule like Model Rule 5.5, but not Model Rule 8.5. Nevada has rules on MJP that are not based on Model Rule 5.5, but permit similar conduct. See Nevada Rules of Prof’l Conduct 5.5, 5.5A, 8.5.

UPL Regulation by Particular States Many state statutory and regulatory provisions address UPL. Most of these authorities do not distinguish

between UPL by nonlawyers and UPL by lawyers licensed in other jurisdictions. Many states make UPL a misdemeanor. A few make it a felony. Some also provide for injunctive and contempt remedies. A number of states further prohibit the collection of fees by lawyers not admitted in that state for legal services rendered in the state. A few states recognize a private cause of action for damages, injunction, or other relief based on UPL.

Enforcement of state UPL prohibitions also varies from state to state. In some jurisdictions, there is a committee or other UPL enforcement body responsible to the state supreme court. In other states, the state bar organization polices UPL. In still others, enforcement is shared between a judicial branch agency and the state attorney general or local prosecutors. Periodically, the ABA’s Standing Committee on Client Protection conducts a survey on UPL enforcement in various U.S. jurisdictions. Results of the most recent survey are contained in the Standing Committee’s 2015 Survey of Unlicensed Practice of Law Committees.

In several cases, a UPL enforcement authority charged a lawyer admitted in another jurisdiction with UPL. Cases from Delaware, Kentucky, Maryland, and Ohio are discussed under their specific state headings below. Most of those cases involve lawyers who opened offices or regularly practiced in jurisdictions where they were not licensed, rather than out-of-state lawyers rendering occasional or temporary legal services. Most, however, does not mean all. Indeed, although approval of revised Model Rules and other changes recommended by the MJP Commission signal a significant change in the profession’s attitude toward MJP, it does not eliminate all risks for lawyers created by state UPL statutes and rules. Some state courts and state bar associations continue to take a hard line on the practice of law in their states by lawyers who are not licensed there.

The number of times an out-of-state lawyer appears for in-state matters is relevant in many jurisdictions for UPL and pro hac vice purposes, including Alabama. In addition, Delaware, the District of Columbia, Florida, Indiana, Montana, Nevada, New Jersey, New Mexico, South Carolina, and the Virgin Islands also have restrictive policies on pro hac vice admissions. Other states may as well. Arizona and New Hampshire recently amended their versions of Rule 5.5 to allow out-of-state lawyers to maintain a presence in the state provided their practice of law relates to the home state where they are admitted.

In California, Section 1282.4 of the California Code of Civil Procedure (1999), and the California Supreme Court’s implementing court rule, Rule 983.4, now renumbered Rule 9.43 addresses UPL. The statute and rule authorize out-of-state lawyers to represent parties to California arbitrations by associating with California counsel and complying with certain procedural requirements. In addition, effective November 1, 2018, California adopted its version of Model Rules 5.5 and 8.5.

The following are decisions and opinions handed down by particular states, courts, ethics committees, and UPL enforcement authorities that address out-of-state lawyers and UPL issues.

Alabama. Rule VII.E of the Rules Governing Admission to the Alabama State Bar provides that “repeated appearances” pro hac vice in Alabama courts by out-of-state firms or lawyers “shall be cause for denial of an application.” It also provides that where any “foreign attorney” has appeared pro hac vice more than five times in any 12-month period, the attorney must show “good cause” for pro hac vice admission. Although Alabama adopted a version of Rule 5.5 that is similar to the Model Rule, Alabama’s version applies only to nonlitigation and alternate dispute resolution matters. Out-of-state lawyers who wish to participate in Alabama litigation are expressly “[s]ubject to the requirements of Rule VII.” Ala. Rule 5.5.B.

The Alabama Supreme Court has held that out-of-state, nonclient plaintiffs can bring a UPL claim against out-of-state lawyers. See Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So. 2d 784, 792−93 (Ala. 2006). In Fogarty, two South Carolina minority shareholders in a failed real estate venture in Alabama sued a North Carolina firm and two of its lawyers who represented the majority shareholder in the venture. The minority shareholders alleged that the lawyers improperly blocked access to company books and records and misrepresented Alabama law in support of that blocked access. The court upheld the minority shareholders’ cause of action for UPL, citing prior Alabama case law that recognized a cause of action for a criminal act that results in injury. The court also refused to extend the protections of the Alabama exclusive statutory malpractice remedy, the Alabama Legal Services Liability Act, Ala. Code § 6-5-570−6-5-581 (2014), to the defendant firm and lawyers because they were not admitted in Alabama. Curiously, however, the court’s decision does not refer to either Alabama Rule of Court VII or Alabama Rule of Professional Conduct 5.5.

Arkansas. In Preston v. Univ. of Ark. for Med. Sci., 128 S.W.3d 430, 436−37 (Ark. 2003), the Arkansas Supreme Court held that a complaint filed in Arkansas by two Oklahoma lawyers who did not associate with local counsel or seek pro hac vice admission until eight months after filing was a nullity. The court affirmed the dismissal of the claim with prejudice because by the time the lawyers moved for admission, the statute of limitations had run on their client’s claim. But see Tobacco Superstore, Inc. v. Darrough, 207 S.W.3d 511, 515−17 (Ark. 2005) (distinguishing Preston and overruling dismissal of an answer filed by a Tennessee lawyer where the lawyer submitted a pro hac vice motion with the answer and provided the court with a copy of the Tennessee comity rule at the hearing on the motion to dismiss). In 2004, the court held that a trial court had jurisdiction to consider a private litigant’s complaint that a defendant had engaged in UPL, thus becoming one of only a few states to recognize a private right of action for UPL. See Am. Abstract & Title Co. v. Rice, 186 S.W.3d 705, 707−08 (Ark. 2004). In LegalZoom.com, Inc. v. McIllwain, 429 S.W.3d 261, 265–66 (Ark. 2013), a divided Arkansas Supreme Court ruled that federal law required it to enforce a contractual arbitration clause obligating LegalZoom customers to arbitrate claims against LegalZoom, including claims that the company had violated Arkansas UPL rules.

Arizona. In 2015, Arizona amended its Rule 5.5 to allow an out-of-state lawyer to maintain a presence in Arizona and practice law that relates solely to the state where the lawyer is licensed to practice. More specifically, the rule provides that a lawyer who is not admitted to practice in Arizona shall not “engage in the regular practice of Arizona law” or “hold out to the public or otherwise represent that the lawyer is admitted to practice Arizona law.” (Emphasis added.)

In State Bar of Ariz. v. Lang, 323 P.3d 740, 747−48 (Ariz. Ct. App. 2014), the court found that a lawyer admitted to practice before a tribal court in Arizona could not practice elsewhere in Arizona unless licensed by the state supreme court. In Nolan v. Kenner, 250 P.3d 236, 240 (Ariz. Ct. App. 2011), the court held that participation in an Arizona arbitration proceeding by a California lawyer not licensed in Arizona was not grounds for overturning the resulting arbitration award.

In In re Hill, Ariz. State Bar No. 15-2621, PDJ 2012-9096 (Oct. 3, 2016), a Texas lawyer represented criminal defendants and appeared at their arraignments in Arizona state court. The lawyer had filed pro hac vice motions that were denied because he did not affiliate with local counsel. At a subsequent telephonic pretrial hearing, the judge denied the lawyer’s request to proceed causing the lawyer to hang up on the judge. The lawyer was then reprimanded. See Lawyer Regulation, Ariz. Att’y, Feb. 2017, at 58.

California. The California rules applicable to UPL are discussed above. See Cal. R. Prof. Conduct 5.5 and 8.4; see also Cal. R. Civ. P. 9.43 and Cal. Civ. P. Code § 1282.4. In January 2014, the California State Bar announced the establishment of a new unit to investigate alleged UPL and, where appropriate, file civil complaints seeking fines for UPL violations. See Joyce E. Cutler, California State Bar Establishes UPL Office While Renewing Bid for More Statutory Power, 30 Law. Man. Prof. Conduct 83 (Jan. 29, 2014).

In In re Pham, No. D2015-01, slip op. (USPTO Feb. 25, 2015), Pham lived in California but was admitted only in Wisconsin. He was suspended from practicing in Wisconsin for improper CLE reporting and failure to pay registration fees, and that suspension included a prohibition on practicing trademark law in Wisconsin and anywhere else. Nevertheless, Pham continued to maintain his USPTO registration and assisted his ex-wife and

her corporation in a trademark dispute. Pham sent emails to opposing counsel as “Associate General Counsel” and expressed legal opinions and settlement positions. In these communications, Pham did not clarify that he was suspended from practice. He also signed a joint representation agreement that referred to him as a lawyer. The USPTO reprimanded Pham and imposed a three-year probation period.

Colorado. In People v. Magee, 2017 Colo. Discipl. LEXIS 45, 2017 WL 2212042 (Apr. 11, 2017), the Colorado Supreme Court suspended Magee for one year as reciprocal discipline for engaging in UPL in Pennsylvania. Although he was only licensed in Colorado, Magee represented to the public on his LinkedIn profile that he was licensed to practice in Pennsylvania. In addition, Magee represented his wife and stepson in a high school expulsion matter. During the hearing, Magee stated that he was the child’s “attorney,” but did not disclose that he was the child’s stepfather or that he lacked a Pennsylvania law license. Afterwards, Magee failed to respond to a request for information from the Pennsylvania disciplinary authorities.

In People v. Kaminski, 2016 Colo. Discipl. LEXIS 110, 2016 WL 6124390 (Sept. 30, 2016), an Illinois lawyer accepted an in-house position with a Colorado corporation and contacted the Colorado Bar in anticipation of her move to the state. The bar advised the lawyer that the two states share reciprocity and that she should either register as a single client counsel or apply for full admission on motion. The lawyer did not take any action because she mistakenly believed that reciprocity meant that she did not have to register in Colorado. A year later, she contacted the bar again and was advised that she may have engaged in UPL. After reviewing the rules, the lawyer applied for registration and was publicly censured.

In People v. Scheideler, 2016 Colo. Discipl. LEXIS 43, 2016 WL 1120863 (Mar. 2, 2016), the lawyer hired Cain as a paralegal in 2010. Cain had previously been suspended from the practice of law for two years and then later disbarred. The lawyer was aware of Cain’s disbarment, but nevertheless allowed Cain to assist him in several matters. In one matter, Cain sent a letter to opposing counsel to initiate settlement discussions. In another matter, Cain sent a demand letter to an insurance carrier that contained legal analysis. In a third matter, Cain participated in a telephonic hearing on a client’s objections to a bankruptcy filing. While waiting for the case to be called, the lawyer left his office momentarily. In his absence, Cain argued the objections on the record. When the lawyer returned, opposing counsel asked who was speaking. The lawyer represented that he had been speaking all along, but opposing counsel was not fooled and successfully moved to disqualify him. The bankruptcy court also sanctioned the lawyer and ordered him to pay opposing counsel’s fees and costs. His UPL lapses in allowing Cain to act as a lawyer also earned the lawyer a one-year suspension, subject to reinstatement only after the lawyer proved by clear and convincing evidence that he had been rehabilitated, had complied with disciplinary orders and rules, and was fit to practice law.

In People v. Auer, 332 P.3d 136 (Colo. 2014), the lawyer was licensed to practice in Oklahoma, but not in Colorado. In 2009, he partnered with a Colorado accountant in purchasing two accounting firms in the state. The lawyer claimed that he would seek a Colorado law license and work under the supervision of a Colorado lawyer for a three-year period. On this basis, the lawyer held himself out as a Colorado lawyer, provided legal advice, and drafted legal documents. The lawyer abandoned his Colorado bar application when he was asked for more information about his activities in the state, but he continued to provide legal advice in Colorado. After failing to appear at his disciplinary hearing, the Colorado Supreme Court found that the lawyer had engaged in UPL and disbarred him. The court also ordered the lawyer to provide restitution to his clients.

Connecticut. In Ogarro v. Getzinger, Grievance Compl. No. 13-0419 (Conn. 2014), a Florida lawyer represented a Connecticut resident in a loan modification even though he was not admitted to practice in the state. See Conn. L. Trib., May 5, 2014. The client paid the lawyer a retainer and provided him with financial documents, which he forwarded to the mortgage company. The client filed a complaint with the Connecticut Grievance Committee after she was unable to reach the lawyer about the status of her case. The committee found that the lawyer engaged in UPL involving dishonest, fraud, deceit, or misrepresentation. The lawyer was reprimanded and ordered to make restitution. He was also later disbarred in Florida.

In Perlah v. S.E.I. Corp., 612 A.2d 806 (Conn. App. Ct. 1992), a client successfully asserted a UPL defense against a firm’s attempt to collect fees from the client. Effective October 1, 2013, Connecticut broadened the definition and increased the penalty for UPL from a class C misdemeanor to a class D felony, but exempted from the harsher penalty lawyers admitted in other states or the District of Columbia. See Conn. Gen. Stat. Ann. § 51−88 (2014).

Delaware. In In re Edelstein, 99 A.3d 227 (Del. 2014), the lawyer was admitted in Pennsylvania and worked out of his firm’s office in that state. But he represented Delaware residents in over 100 matters relating to auto accidents that occurred in and involved insurance policies issued in Delaware. Many of these clients chose the lawyer because of television advertisements targeting Delaware residents. The court concluded that the lawyer established a systematic and continuous presence in Delaware that constituted UPL. The lawyer was

suspended for one year and prohibited from acting pro hac vice for three years. He was also suspended in Pennsylvania for one year.

In In re Barakat, 99 A.3d 639 (Del. 2013), cert. denied, 134 S. Ct. 2822 (2014), the Delaware Supreme Court disciplined the lawyer for failing to maintain a “bona fide office” in the state. Delaware Supreme Court Rule 12(b) requires that “all papers filed with the Court shall be signed by an attorney who is an active member of the Bar of this Court and who maintains an office in Delaware for the practice of law.” Rule 12(d) further states that “[a] bona fide office is more than a mail drop” and must be “a place where the attorney or a responsible person acting on the attorney’s behalf can be reached in person or by telephone during normal business hours and which has the customary facilities for engaging in the practice of law.” Although the lawyer maintained a Delaware business address of record, the court found that this was not an “office” in the traditional sense. The court noted that the lawyer often worked from his home in Pennsylvania, his lease did not include any designated office space for his practice of law, the landlord’s employees collected his mail and greeted his visitors, and his presence in the office was sporadic and unscheduled. The lawyer was suspended from practice for two years.

In In re Pelletier, 84 A.3d 960 (Del. 2014), the lawyer was admitted to practice law in New Jersey and set up a general legal practice in Delaware. He signed engagement letters and advertised in the state. The lawyer claimed that he talked to local lawyers, formed the belief that his actions were permissible, and on that basis provided legal services to multiple Delaware clients. The court found that his conduct was knowing, not negligent, and he was suspended and prohibited from appearing pro hac vice for one year.

From 2009 to 2012, a lawyer who was licensed in New Jersey and Pennsylvania, but not in Delaware, represented more than 75 Delaware residents in settling personal injury claims arising out of automobile accidents in Delaware that involved Delaware insurance policies governed by Delaware law. The lawyer never appeared before a Delaware tribunal, advertised his services in Delaware, or represented to any client that he was licensed in Delaware. A hearing panel found that he had engaged in UPL in violation of Delaware Rules 5.5(b)(1) and 5.5(b)(2), and recommended that he be suspended from practice for one year. The Delaware Supreme Court agreed in In re Nadel, 82 A.3d 716, 722 (Del. 2013).

In In re Kingsley, 950 A.2d 659 (Del. 2008), the lawyer was “disbarred” from practicing law in Delaware, where he had never been licensed (although he was licensed in the neighboring states of New Jersey and Pennsylvania), because he had regularly practiced law in the office of a Delaware certified public accountant for four months. Sample v. Morgan, 935 A.2d 1046, 1063−64 (Del. Ch. 2007) holds that non-Delaware lawyers who advise a Delaware corporation about Delaware law may be subject to personal jurisdiction in the state for claims of aiding and abetting breach of fiduciary duty by the corporation’s directors, even if the lawyers were not admitted in Delaware, had no office in Delaware, and were never physically present in Delaware.

In In re Tonwe, 929 A.2d 774 (Del. 2007), the lawyer was licensed to practice in Pennsylvania, but a substantial portion of her caseload included the representation of clients in Delaware. She was disbarred for UPL and for violating a prior cease and desist order.

District of Columbia. The District of Columbia Court of Appeals in 1973 recognized a private litigant’s right to assert a counterclaim for UPL, making D.C. one of the first to enforce a private cause of action for UPL. See J.H. Marshall & Assocs., Inc. v. Burleson, 313 A.2d 587, 593 (D.C. 1973). In 2004, the same court disbarred a D.C. lawyer as reciprocal discipline based on the lawyer’s “disbarment” in Maryland for practicing there without a license. See In re Barneys, 861 A.2d 1270, 1275 (D.C. 2004). The original Maryland disciplinary decision is reported in Attorney Grievance Comm’n Md. v. Barneys, 805 A.2d 1040 (Md. 2002).

In In re Anderson, 99 A.3d 276 (D.C. 2014), a District of Columbia- and Virginia-admitted lawyer filed a divorce petition in Maryland. In another matter, the lawyer represented a client in a civil protection matter and criminal proceeding in Maryland. In both matters, the lawyer did not disclose that she was not admitted in Maryland or request pro hac vice admission. The D.C. Court of Appeals approved a negotiated disposition and publicly censured the lawyer for UPL. She was also suspended for 15 months in Virginia.

In Blackman v. District of Columbia, 355 F. Supp. 2d 171 (D.D.C. 2005), the court struck down a preliminary injunction motion filed by a Louisiana lawyer who kept an office in D.C. but was not licensed there. Although the lawyer had been admitted pro hac vice in the case, the judge concluded that he had forfeited that privilege by improperly operating a D.C. office.

The District of Columbia Court of Appeals Committee on Unauthorized Practice of Law similarly opined as to contract lawyers: “As a general proposition, a contract lawyer who practices in the District on a regular basis must be a member of the D.C. Bar.” District of Columbia Opinion 16-05 (June 17, 2005). The committee noted that a lawyer practicing primarily in another jurisdiction is not practicing law in the District “simply by taking on one discrete project here on an incidental basis,” but stated that a contract lawyer who regularly takes assignments in

the District would have to be licensed even if each assignment viewed in isolation would “constitute only incidental or occasional presence here.” Id. The following year, however, the same committee concluded that a lawyer licensed in another state can run a federal court practice from a D.C. office as long as the lawyer makes it clear, on letterhead, emails, websites, and court filings, that the lawyer’s practice is limited to federal issues. District of Columbia Opinion 17-06 (July 21, 2006). The committee required disclosure because it found that a D.C. address implied that a lawyer was authorized to practice in D.C., and lawyers located outside D.C. would not need such a disclosure. The committee added, however, that its opinion applied only where 100% of the lawyer’s practice was federal, and if any percentage, however small, was something other than federal practice, a D.C. license was required. This opinion was based on D.C. Court of Appeals Rule 49(c)(3), which is consistent with Model Rule 5.5(d)(2).

In District of Columbia Opinion 23-18 (Apr. 12, 2018), the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law concluded that an attorney licensed outside of D.C. may represent respondents in the administrative phases of D.C. attorney-disciplinary matters without violating Rule 49’s prohibition on UPL so long as the attorney meets the requirements for pro hac vice admission. The lawyer must actually apply for pro hac vice admission, however, once the matter reaches the D.C. Court of Appeals, which has the final say on attorney disciplinary matters.

Effective January 1, 2019, the D.C. Court of Appeals revised Rule 49(c)(9) to provide that a lawyer licensed outside of D.C. may provide pro bono legal services in affiliation with (but not as an employee of) a nonprofit organization located in D.C. so long as the lawyer is an inactive or retired member of the D.C. bar or another state, or licensed to practice law and in good standing in another state.

Florida. A party may not bring a private civil action for UPL in Florida unless the Florida Supreme Court has already ruled that the activities in question constitute UPL, although the plaintiff may seek an advisory opinion from the Florida Bar for the Florida Supreme Court to review. See Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905, 907−08 (Fla. 2010). But the request for such an advisory opinion must specify precisely what activities are at issue or the Supreme Court will refuse to rule on the request. See Fla. Bar re Advisory Op. v. Fundamental Admin. Servs., 176 So. 3d 1273 (Fla. 2015).

In Fla. Bar v. Palmer, 149 So. 3d 1118 (Fla. 2013), the lawyer continued to engage in UPL despite being permanently disbarred in Florida. As a result of this conduct, the lawyer was found in contempt of the disbarment order and sentenced to 180 days incarceration. Years later, the Florida Bar filed a new contempt petition against the lawyer arising out of his registered ownership of a business called “All Florida Legal Clinic” and identification as a “retired” partner in the business. A client contacted the clinic and prepaid the lawyer for his assistance in a guardianship matter. The client did not hear anything further from the lawyer and eventually received a partial refund. The Florida Supreme Court found that the lawyer had repeatedly engaged in UPL, sentenced him to 60 days in jail, and ordered him to refund the full amount to the client.

In Fla. Bar v. D’Ambrosio, 25 So. 3d 1209 (Fla. 2009), a Florida lawyer was suspended for one year based on conduct showing a “complete disrespect for the disciplinary process.” During his suspension, the lawyer continued to occupy and maintain his contact information for his law office in Boca Raton. In addition, he sent a letter to a lawyer in California and represented himself as counsel for a corporate client. The lawyer also assisted a friend in filing a legal malpractice action in Illinois where he was not licensed to practice. The Florida Supreme Court sanctioned and disbarred the lawyer for his cumulative misconduct.

Florida Rule of Professional Conduct 4-5.5 must be read in conjunction with other rules affecting lawyers who are not members of the Florida Bar. For example, under Florida Rule of Judicial Administration 2.510(a), a lawyer authorized to practice in a state other than Florida may not appear in a Florida court if he or she is engaged in a “general practice” before the Florida courts. The rule further states that “more than 3 appearances within a 365-day period in separate representations shall be presumed to be a ‘general practice.’” This “general practice” limitation on out-of-state lawyers also applies to arbitration proceedings pursuant to Florida Rule Regulating the Florida Bar 1-3.11(d). See generally Lamb v. Jones, 202 So. 2d 810 (Fla. Dist. Ct. App. 1967).

In an action filed by a lawyer hoping to prevent the Florida Bar from charging him with UPL, a federal district court ruled that a lawyer residing, but not licensed, in Florida could not advertise for clients in Florida who might need help with New York or federal matters. See Gould v. Harkness, 470 F. Supp. 2d 1357, 1362−63 (S.D. Fla. 2006), aff’d sub nom. Gould v. Fla. Bar, 259 F. App’x 208 (11th Cir. 2007). The court restricted its analysis to whether the Florida Bar UPL threat violated the lawyer’s First Amendment rights. The Florida MJP rule, which is similar to Model Rule 5.5, did not affect the result because “the MJP rules seem to refer to known clients with potential proceedings or actually pending proceedings.” 470 F. Supp. 2d at 1363. Here, however, the lawyer was looking for new Florida clients. Although the lawyer’s planned disclosure notice stated that his practice was limited to New York and federal matters, the court found that his use of a Miami address and telephone number would

create a false impression that he held a Florida license. Florida Rule 4-5.5(b)(1) forbids lawyers who are not admitted in Florida from establishing an office or regular presence in Florida.

In February 2003, the Florida Supreme Court found a lawyer admitted in the District of Columbia, but not in Florida, guilty of UPL for representing parties in securities arbitrations in Florida. See Fla. Bar v. Rapoport, 845 So. 2d 874, 875−76 (Fla. 2003). There were aggravating circumstances in Rapoport, such as the lawyer’s permanent residence in Florida and the use of newspaper ads to publicize to Florida residents his availability to represent them in Florida arbitrations. The absence of such factors may lead the Florida Bar to exercise restraint in enforcing the decision against other out-of-state lawyers who appear only occasionally in securities arbitrations in Florida, but caution is warranted.

Effective April 1, 2012, the Florida Supreme Court amended its rules to permit the Florida Bar to issue formal ethics opinions on UPL issues even where the disputed activity is already the subject of litigation. The first opinion issued under this rule, which dealt with a “litigation liaison” company and its out-of-state in-house counsel, was reversed on appeal to the Florida Supreme Court on procedural grounds. See Scharrer v. Fundamental Admin. Servs., 176 So. 3d 1273 (Fla. 2015).

Georgia. Effective December 1, 2012, the Georgia Supreme Court amended Rule 5.5 of the Georgia Rules of Professional Conduct to permit foreign lawyers (lawyers admitted in non-U.S. jurisdictions) to serve as in-house counsel in Georgia. Georgia’s Rule 5.5 already permitted foreign lawyers to temporarily practice in Georgia, to be admitted pro hac vice, and to work as foreign legal consultants.

Illinois. In 2005, the Illinois Supreme Court held that Illinois did not recognize a private cause of action for UPL. See King v. First Capital Fin. Servs. Corp., 828 N.E.2d 1155, 1170 (2005). But in 2007, Illinois enacted a statute that recognizes such a private cause of action. See 705 Ill. Comp. Stat. Ann. 205/1 (2014).

In In re Burke, 1997 Ill. Atty. Reg. Disc. LEXIS 431, 1997 WL 745615 (Sept. 24, 1997), the lawyer was admitted in Illinois and later moved to New York, where he passed the bar exam but never submitted his character and fitness application. For eight years, the lawyer represented hundreds of clients in New York courts without being licensed in the state. The lawyer plead guilty to a misdemeanor complaint of UPL for representing a New York client in a divorce proceeding. He was also suspended in Illinois for one year until further order of court.

In In re Williams, 2016 Ill. Atty. Reg. Disc. LEXIS 234, 2016 WL 5886143 (Sept. 22, 2016), a lawyer was suspended for one year. The lawyer lived and worked as a solo practitioner in Michigan, where he was never licensed. He handled two bankruptcy cases in Michigan without notifying the court of his Illinois suspension. In one of the cases, the lawyer agreed to represent a debtor for $500. Her case, however, was dismissed after the lawyer failed to file required documents. The debtor then filed a pro se motion to reopen the case and the court ordered the lawyer to appear on the matter. After failing to appear, the lawyer was arrested and brought before the court. By that time, the court was aware of the lawyer’s suspension and questioned him about his authority to practice in Illinois. The lawyer falsely informed the court that he was authorized to practice law in Illinois and produced his Illinois State Bar Association card as proof. The Michigan federal court disbarred the lawyer for UPL, and Illinois imposed reciprocal discipline after he failed to appear at his disciplinary hearing.

In In re Kois, 2015 Ill. Atty. Reg. Disc. LEXIS 125, 2015 WL 10014851 (Nov. 17, 2015), the lawyer was licensed in Illinois and registered as inactive in 2000. The next year, the lawyer was removed from the Illinois Master Roll for failing to register. For the next 15 years, he worked as a telecommunications and business consultant. For four months in 2014, however, the lawyer worked with local Alabama counsel representing a municipal water board in a dispute with another state water board, while collecting a fee of $40,000 and identifying himself as a lawyer on numerous invoices. The lawyer was censured for UPL.

In In re Landau, 2015 Ill. Atty. Reg. Disc. LEXIS 120, 2015 WL 10014845 (Nov. 17, 2015), the lawyer owned the Credence Law Group, a California-based company that solicited and offered legal assistance to distressed homeowners in eight states. The lawyer incorporated Credence in Illinois and set up a “virtual office” in the same Chicago building as the Illinois Attorney Registration & Disciplinary Commission (ARDC). The lawyer lived in Nevada, not Illinois, and allowed the nonlawyers who ran the company to solicit clients, withdraw money from client fund accounts, and provide legal advice. The nonlawyers did little work on the matters. The lawyer also personally collected $62,000 in fees. The lawyer expressed remorse for his conduct and the resulting harm to clients, adding that he suffered from a mental illness and no longer wanted to practice law. The Illinois Supreme Court suspended the lawyer for three years until further order of the court. The lawyer received the same reciprocal discipline in Texas where he was licensed.

In In re Conrad, M.R. 27327, 2014PR0063 (Ill. Sept. 21, 2015), the lawyer was licensed in Kentucky and Indiana, but not Illinois. Nevertheless, she represented four clients in separate inquiries before the Illinois Racing Board. In each case, the lawyer provided legal services and falsely identified herself as an Illinois lawyer. The

lawyer even maintained a Chicago office in the same building as the ARDC. As a result of her UPL, the lawyer was suspended for six months until further order of the court. Indiana imposed reciprocal discipline and suspended the lawyer “indefinitely.” The Indiana Supreme Court further ordered that the lawyer could apply for reinstatement only after being reinstated in Illinois.

In Downtown Disposal Services Inc. v. Chicago, 979 N.E.2d 50 (Ill. 2012), a divided Illinois Supreme Court changed the long-standing “nullity rule” that previously treated court and administrative filings by persons not admitted to practice in Illinois as null and void. The court ruled that a multifactor test, rather than the prior per se rule, should be used to determine the validity of such filings.

Illinois Opinion 12-09 (Mar. 2012) concluded that Illinois Rule 5.5(b)(1) prohibits a lawyer licensed in another state, but who resides and primarily works in Illinois, from establishing a law practice in Illinois in partnership with an Illinois-admitted lawyer. This conclusion applies even if the Illinois-admitted lawyer directly supervises all matters involving Illinois clients, signs all court papers and makes all court appearances in Illinois cases, and conducts all real estate closings relating to Illinois property. Similarly, it does not matter if the non-Illinois lawyer’s letterhead, business cards, and personal interactions with clients make clear that he is not licensed in Illinois.

Illinois Opinion 13-08 (Oct. 2013) opined that a lawyer admitted and located in another state may conduct a federal immigration law practice in Illinois using a nonlawyer assistant to meet with Illinois clients and gather information for the lawyer’s use, so long as the lawyer discloses to clients that he is not admitted in Illinois, limits his practice to federal immigration law, and adequately supervises the nonlawyer assistant.

Illinois Opinion 14-04 (May 14, 2014) advised that an out-of-state lawyer’s promotional mailings to Illinois residents do not automatically constitute UPL because Illinois Rule of Professional Conduct 5.5 permits lawyers admitted elsewhere to provide legal services on a temporary basis in Illinois in certain situations.

The Illinois Supreme Court has also amended its rules in this area. Illinois Supreme Court Rules 707, 718, and 756 were amended in 2014 to simplify the process for out-of-state lawyers to appear in Illinois courts. And Illinois Supreme Court Rules 11, 13, and 137 and the comments to Rules 1.2, 4.2, and 5.5 were amended in 2013 to permit and establish procedures governing “limited scope appearances.”

Indiana. An Ohio law firm’s website offering to represent clients in other states and Ohio-based TV ads that could be viewed in Indiana were not enough to establish personal jurisdiction over the firm that would allow a manufacturer to sue it in Indiana for allegedly lying about the manufacturer’s products on the firm’s website and in the TV ads. See Zimmer, Inc. v. Elk & Elk, 2011 U.S. Dist. LEXIS 123334, at *14, 2011 WL 5040704, at *5 (N.D. Ind. Oct. 24, 2011).

Indiana lawyers who ignore their supervisory duties when serving as co-counsel for out-of-state lawyers can expect to receive serious disciplinary sanctions. The Indiana Supreme Court made that clear in In re Anonymous, 932 N.E.2d 1247, 1250 (Ind. 2010). Although the unnamed Indiana lawyer was co-counsel for a Kentucky lawyer in Indiana litigation, he failed to ensure that the Kentucky lawyer was properly admitted under Indiana’s temporary practice rules and allowed him to sign pleadings and appear alone in court, thereby assisting in UPL.

An Ohio lawyer’s intermittent visits to Indiana over three years to represent an Indiana resident in a single postconviction matter did not exceed the bounds of “temporary” services permitted by Indiana Rule 5.5. See State ex rel. Ind. Supreme Court Discip. Comm’n v. Farmer, 978 N.E.2d 409 (Ind. 2012).

Effective January 1, 2013, the Indiana Supreme Court amended Rule 5.5 of the Indiana Rules of Professional Conduct to make its temporary practice provisions applicable to non-Indiana lawyers admitted in non-U.S. jurisdictions, as well as those admitted in other U.S. jurisdictions.

The Indiana Supreme Court reversed a trial court ruling denying pro hac vice admission to five out-of-state lawyers based on a local rule providing that out-of-state lawyers “shall not generally be permitted to practice in” the local court system. The Indiana Supreme Court held that the “local rule cannot vitiate the trial court’s discretion to find good cause for temporary admission under [Indiana] Admission and Discipline Rule 3(2),” which only requires a good cause showing. See YTC Dream Homes v. DirectBuy, 30 N.E.3d 701, 703 (Ind. 2015) (per curiam).

Iowa. The Iowa Supreme Court had authority to discipline a lawyer licensed in Minnesota (but not in Iowa) who practiced federal immigration law in Iowa and committed numerous violations of Iowa law and professional conduct rules. See Iowa Supreme Court Att’y Discip. Bd. v. Carpenter, 781 N.W.2d 263 (Iowa 2010).

Kansas. A Kansas lawyer who went on inactive status and then had his license suspended for failing to pay the annual registration fee after he moved to Missouri was held to have committed UPL when he obtained pro hac vice admission in Kansas. See In re Hall, 377 P.3d 1149 (Kan. 2016).

In In re Trester, 172 P.3d 31 (Kan. 2007), the Kansas lawyer practiced immigration and labor law in California and advertised his practice as “Law Offices of Irwin Trester.” California prosecutors charged the lawyer with UPL and grand theft based on his acceptance of retainers without a license to practice in the state. After pleading no contest, the Kansas Supreme Court placed the lawyer on probation for three years and ordered him to perform 100 hours of community service and pay restitution. The court also suspended the lawyer indefinitely, subject to reinstatement only after a demonstration of competency and willingness to comply with Kansas law.

In In re Rost, 211 P.3d 145, 159−60 (Kan. 2009), the Kansas Supreme Court disbarred a Kansas lawyer for continuing to practice law after he had retired.

In re Kathy L. Lyeria Living Trust, 336 P.3d 882, 888−89 (Kan. Ct. App. 2014), held that a quasi-judicial state agency that hears taxpayer appeals does not have authority to make UPL or legal ethics determinations concerning taxpayer representatives who appear before the agency.

Kentucky. An Illinois lawyer’s failure to comply fully with the local rules regarding pro hac vice admission resulted in a dismissal with prejudice of a complaint signed by that lawyer in Brozowski v. Johnson, 179 S.W.3d 261, 264 (Ky. Ct. App. 2005). The Illinois lawyer filed a medical malpractice case in Kentucky, and a Kentucky lawyer simultaneously filed a motion for the Illinois lawyer’s admission pro hac vice. That motion was defective, however, because it failed to include a proposed order in compliance with the Kentucky local court rules. That defect led the court to grant the defendant hospital’s motion to dismiss based on the failure to comply with a local rule requirement that every pleading be signed by “at least one attorney of record.” 179 S.W.3d at 264.

In Ky. Bar Ass’n v. Yocum, 294 S.W.3d 437, 440 (Ky. 2009), the Kentucky Supreme Court suspended for 120 days an out-of-state lawyer who it found had violated the Kentucky rules for pro hac vice admission and had filed falsified medical reports in a worker’s compensation matter.

Another Kentucky Supreme Court case teaches that lawyers must be mindful of the status of other lawyers they may use for certain work. In Ky. Bar Ass’n v. An Unnamed Att’y, 191 S.W.3d 640, 641 (Ky. 2006), the court issued a private reprimand to a lawyer who hired a suspended lawyer to work on a particular case. The court disciplined the lawyer because he allowed the suspended lawyer to make a presentation to, and respond to questions from, a group of potential clients. In addition, although the lawyer told the group that the suspended lawyer was not currently practicing law for “health reasons,” the lawyer did not disclose the suspension.

Louisiana. A consumer complaint seeking to invalidate the sale of divorce documents purchased from a nonlawyer online vendor on the theory that the documents were the product of the unlicensed practice of law survived a motion to dismiss in Lowery v. Divorce Source, Inc., 2015 U.S. Dist. LEXIS 121323, 2015 WL 5321758 (E.D. La. Sept. 11, 2015).

In In re Cortigene, Sr., 144 So. 3d 915 (La. 2014), the lawyer represented a client in an employment matter pending in federal district court in Louisiana. The lawyer participated in depositions in Louisiana even though he was not licensed or admitted to practice pro hac vice at any time during the litigation. As the litigation progressed, even though the lawyer knew he was listed on the federal court’s docket as an attorney of record, he failed to seek pro hac vice admission or notify the court that he was not admitted. The lawyer claimed no charges could be filed in Louisiana because he was acquitted of similar misconduct charges arising out of the same matter in Texas where he was admitted to practice. The lawyer maintained that the Texas judgment should be given full faith and credit in Louisiana. The Louisiana court rejected the lawyer’s argument and enjoined him for three years from seeking full admission to the Louisiana bar or practicing on a temporary or limited basis in the state, including pro hac vice admission. In a consolidated proceeding, the lawyer’s colleague was also disbarred for facilitating the lawyer’s conduct and failing to report it to the disciplinary authorities.

Maryland. In 2011, the Maryland Court of Appeals disbarred a Maryland-licensed lawyer for misrepresenting himself as a Maryland resident when he applied for pro hac vice admission in California, to which he had recently relocated. See Att’y Griev. Comm’n of Md. v. Joseph, 31 A.3d 137, 159 (Md. 2011).

In an opinion issued a few months before Maryland adopted Model Rule 5.5, the Maryland State Bar Association ethics committee opined that a New York law firm could not open an office in Maryland to practice “federal tax law” if no lawyer in the office was admitted in Maryland. Although the “firm’s letterhead, business cards, and the door to the leased space would prominently display that the attorneys are not licensed to practice law in Maryland,” the committee found that “opening a law office in Maryland, where no one is admitted to the practice of law in Maryland, will result in your firm’s unauthorized practice of law in this jurisdiction.” Maryland

Opinion 2005-07 (Feb. 17, 2005); see also Barneys, 805 A.2d at 1040 (“disbarring” D.C. lawyer from future Maryland practice for operating a law office in Maryland without being admitted there).

In Att’y Griev. Comm’n of Md. v. Shephard, 119 A.3d 765 (Md. 2015), the lawyer was admitted in the District of Columbia only, but was named the “Managing Attorney” for a Maryland law firm. She had sole signatory authority over the firm’s trust accounts, and she met with clients without noting her jurisdictional limitations. Due to her lax attention to detail, trust funds were improperly deposited. Case status updates also were missed, and clients failed to receive promised services. The Maryland Court of Appeals found that the lawyer violated an array of that state’s rules of professional conduct. She was disbarred in Maryland and reciprocally disciplined in the District of Columbia. See also Att’y Griev. Comm’n of Md. v. Zhang, 100 A.3d 1112 (Md. 2014) (lawyer disbarred after representing her niece in divorce proceeding pending in Virginia despite only being licensed to practice in Maryland); Att’y Griev. Comm’n of Md. v. Kimmel, 955 A.2d 269 (Md. 2008) (Pennsylvania lawyer suspended for hiring inexperienced Maryland lawyer as sole staff member of new Maryland office and failing to supervise her); Att’y Griev. Comm’n of Md. v. Walker-Turner, 812 A.2d 260 (Md. 2002) (Maryland-admitted lawyer suspended from practice in Maryland for 30 days for sharing office space in the District of Columbia, where he was not admitted to practice, and doing legal work for D.C. clients out of his D.C. home); Att’y Griev. Comm’n of Md. v. Harris-Smith, 737 A.2d 567 (Md. 1999); Att’y Griev. Comm’n of Md. v. Harper, 737 A.2d 557 (Md. 1999).

Massachusetts. A Massachusetts lawyer was suspended for a year and a day for facilitating UPL by allowing an unlicensed law school graduate to run an employment discrimination law practice out of the lawyer’s office. See In re Hrones, 933 N.E.2d 622, 629−30 (Mass. 2010); Superadio L.P. v. Winstar Radio Prods., LLC, 844 N.E.2d 246 (Mass. 2006) (refusing to vacate Massachusetts arbitration award just because lawyers for one party were not admitted to practice in Massachusetts, but also declining to decide whether those lawyers had engaged in UPL); see also Mscisz v. Kashner Davidson Secs. Corp., 844 N.E.2d 614 (Mass. 2006) (same). The Supreme Judicial Court held that a lawyer who has resigned, or has been disbarred or suspended, is prohibited from serving as a mediator in some circumstances. See In re Bott, 969 N.E.2d 155, 160−61 (Mass. 2012).

Michigan. See Mich. Comp. Laws Ann. § 600.916 (2017).

Minnesota. A complaint filed in Minnesota state court is defective if signed only by a lawyer not licensed in Minnesota, but the defect is curable at the discretion of the trial judge. See DeCook v. Olmsted Med. Ctr., Inc., 875 N.W.2d 263 (Minn. 2016).

In re Disciplinary Action against Overboe, 745 N.W.2d 852, 862 (Minn. 2008), holds that in a Minnesota disciplinary proceeding involving a lawyer licensed in both North Dakota and Minnesota, North Dakota professional conduct rules apply to charges the lawyer abused a client trust account because both the lawyer’s practice and the account were located in North Dakota. Minnesota professional conduct rules apply to charges that the lawyer lied to and failed to cooperate with Minnesota disciplinary authorities, however.

In In re Charges of Unprofessional Conduct in Panel File No. 39302, 884 N.W.2d 661 (Minn. 2016), a Colorado lawyer ran into trouble in Minnesota when he sent emails to a local lawyer on behalf of his in-laws in a dispute over the collection of a $2,368 judgment against them. After settlement negotiations failed, opposing counsel reported the Colorado lawyer for engaging in UPL. A divided Supreme Court affirmed the Minnesota disciplinary panel’s private admonition of the Colorado lawyer. The court concluded that the lawyer engaged in UPL even though the lawyer was never physically present in the state. The dissent contended that the lawyer was merely engaging in temporary legal work related to his home-state practice.

Mississippi. The Mississippi Supreme Court has ruled that a non-Mississippi lawyer may not sign pleadings or appear at depositions or hearings until he has been admitted pro hac vice in Mississippi. See In re Williamson, 838 So. 2d 226, 235−36 (Miss. 2002).

Missouri. A Missouri federal court held that Missouri’s interest in applying its own UPL law invalidated a forum selection clause in a contract that called for any contract disputes to be heard in California. Plaintiffs were Missouri residents suing a California-based supplier of online legal forms, which, plaintiffs argued, constituted UPL. See Janson v. LegalZoom.com, Inc., 727 F. Supp. 2d 782, 786−87 (W.D. Mo. 2010).

In Hensel v. Am. Air Network, Inc., 189 S.W.3d 582, 584 (Mo. 2006) (en banc), the court held that a petition signed by a lawyer not admitted to practice in Missouri just before the statute of limitations expired did not forfeit the clients’ cause of action when an admitted lawyer signed the petition within two months of recognizing the problem.

Montana. The Montana Supreme Court abolished its UPL commission in 2010 and announced that all future UPL complaints against nonlawyers will be handled by the Montana attorney general’s consumer protection office. The State Bar of Montana indicates on its website that it will continue to assist with complaints against

attorneys licensed in other states who are practicing in Montana. See State Bar of Montana, https://www.montanabar.org/page/UPL.

Nevada. The Nevada Supreme Court has held that a Nevada lawyer who regularly employed in his Las Vegas office a lawyer admitted in Arizona but not in Nevada, and used that lawyer to handle matters involving Nevada law for Nevada clients, was guilty of assisting UPL in violation of Nevada Rule of Professional Conduct 5.5, and should receive a public reprimand for his conduct. See In re Lerner, 197 P.3d 1067, 1075−76 (Nev. 2008).

Nevada Rule of Professional Conduct 5.5A requires, among other things, an out-of-state lawyer who participates in Nevada transactions to file an annual list of all Nevada matters in which the lawyer has participated.

Nevada Opinion 43 (Oct. 27, 2011) concludes that out-of-state lawyers may perform transactional services in Nevada so long as they do not provide them on a “regular or repetitive” basis, they affiliate with local counsel, and they make timely reports as required by Rule 5.5A. The opinion stresses that the local lawyer must “actively participate” in the matter, and suggests that, although the rules do not require it, the local Nevada lawyer would be well advised to notify the client in writing that the out-of-state lawyer is not licensed in Nevada.

New Hampshire. In 2017, New Hampshire modified its Rule 5.5 to allow a lawyer who is not admitted to practice in the state to maintain a presence there so long as the lawyer’s practice relates solely to his home state. The rule provides that a lawyer who is not admitted to practice in the state shall not “establish an office or other systematic and continuous presence in this jurisdiction for the practice of the law of this jurisdiction” or “hold out to the public or otherwise represent that the lawyer is admitted to practice the law of this jurisdiction.” N.H. Rule 5.5(b) (paragraph 3 of rule’s comments explains reasoning for change).

New Jersey. Effective February 1, 2013, the New Jersey Supreme Court modified the state’s notorious “bona fide office” requirement to provide that a physical brick-and-mortar office is not required to practice law in New Jersey, provided the lawyer structures his practice to ensure “prompt and reliable communications with and accessibility to clients, other counsel and judicial and administrative tribunals before which the attorney may practice.” In addition, the lawyer must “be reasonably available for in-person consultations requested by clients at mutually agreeable times and places.” Rule 1:21-1(a), Rules Governing the Courts of the State of New Jersey.

On January 17, 2012, the governor of New Jersey signed into law a bill that increases penalties for several forms of UPL and creates a civil cause of action for persons injured by UPL. Among other things, the bill criminalizes UPL by nonlawyer “immigration consultants” who advertise or otherwise hold themselves out as lawyers.

In December 1994, the New Jersey Supreme Court Committee on Unauthorized Practice of Law issued Opinion 28 (Dec. 19, 1994), which restricted the ability of out-of-state lawyers to represent a party in a New Jersey arbitration to instances where a complaint has not been filed in New Jersey on the issue, and the attorney is admitted and in good standing in another jurisdiction. After the adoption of Model Rule 5.5, however, the UPL committee supplemented Opinion 28 with Opinion 43 (Jan. 8, 2007), which provides that out-of-state lawyers may participate in arbitrations and mediations in New Jersey provided they comply with the requirements of New Jersey Rule 5.5. The committee emphasized the Rule 5.5(c) requirements that lawyers: (1) register with the Clerk of the Supreme Court; (2) authorize the Clerk to accept service of process; and (3) comply with New Jersey rules on registration and fees. The committee recommended that arbitration forums, such as the American Arbitration Association (AAA), require out-of-state lawyers to submit proof of compliance with Rule 5.5 as part of their initial filing process.

In NAAMJP v. Simandle, 2015 U.S. Dist. LEXIS 115865 (D.N.J. Sept. 1, 2015), a local court rule that makes it easier for New Jersey−admitted lawyers to gain admission to that state’s federal district court was upheld against a challenge by out-of-state lawyers who are not eligible for that privilege.

In In re Baik, 131 A.3d 410 (N.J. 2016), the lawyer represented New Jersey residents in a real estate purchase and a bankruptcy matter without disclosing that she was not admitted in the state. She also failed to provide them with a written fee agreement, deposited a check in her Pennsylvania firm’s account without authorization, and received rental checks on her clients’ behalf for the property she had assisted in purchasing (again depositing them into her firm account without authorization). The lawyer agreed to a stipulation of discipline on consent and was also publicly reprimanded in Pennsylvania.

For other New Jersey−specific UPL issues, see generally In re Jackman, 761 A.2d 1103 (N.J. 2000); In re Op. 33 of the Comm. on the Unauth. Practice of Law, 733 A.2d 478 (N.J. 1999); In re Estate of Waring, 221 A.2d 193 (N.J. 1966); New Jersey Committee on Unauthorized Practice of Law Opinions 49 (Oct. 3, 2012) (providing

guidance on scope of practice permitted by out-of-state lawyers) and 38 (July 8, 2002) (restricting ability of non−New Jersey lawyers to represent New Jersey estates).

New Mexico. Since 2005, New Mexico has had a very restrictive rule on practice in New Mexico by out-of-state lawyers. Such lawyers must register with the state bar each time they appear in any capacity (including transactional representations), associate with a New Mexico−admitted lawyer, pay a substantial fee for each registration, and provide detailed information on their disciplinary status. These appearances are limited to five per year. See N.M. R. 24-106 (2013). New Mexico Rule 16-505(F) may provide some limited exceptions to Rule 24-106’s requirements, although the wording of Rule 16-505(F) is not clear. N.M. R. 16-505(F).

In 2014, the New Mexico Supreme Court amended New Mexico Rule 15-107 to permit admission of out-of-state lawyers by motion effective June 1, 2015. The rule is similar to the ABA Model Rule on admission by motion, except that it contains a reciprocity requirement.

In State v. Rivera, 268 P.3d 40, 42 (N.M. 2012), the court held that a law student should not have participated as a prosecutor in a criminal trial despite a state statute allowing such participation because the appearance did not comply with the New Mexico Supreme Court’s rules on practice by persons not licensed in New Mexico. The student’s improper appearance, however, was not significant enough to warrant reversal of the defendant’s conviction.

In In re Convisser, 242 P.3d 299, 312 (N.M. 2010), the court held that a lawyer with only an inactive out-of-state license is not authorized to give legal advice in New Mexico even under a liberal reading of New Mexico’s rule allowing limited MJP.

New York. New York Opinion 1160 (Jan. 2, 2019) addresses whether a New York lawyer may affiliate and share fees with another lawyer who is a New York resident, but only licensed to practice law in another state. The proposed arrangement was as follows: the out-of-state lawyer would generate business; any letterhead would clarify that the lawyer is not licensed to practice in New York; and the out-of-state lawyer would attend initial meetings with any clients that he generates, but would not perform any legal work on the matter. The opinion concludes that this arrangement “would as a matter of law constitute the unauthorized practice of law” and may constitute improper solicitation under Rule 7.3, which applies to out-of-state lawyers.

In Matter of Vayer, 70 N.Y.S.3d 512 (App. Div. 2018), the court placed a lawyer on interim suspension pending a UPL investigation after the Attorney Grievance Committee discovered that the lawyer had failed to re-register or complete his CLE requirements for 17 years. The court rejected the lawyer’s explanations for his failure as “incredible and unavailing.”

In Matter of Sishodia, 60 N.Y.S.3d 153 (App. Div. 2017) (per curiam), a New York lawyer was suspended for two years for assisting the head of her firm in UPL during his suspension. Among other things, the lawyer took a significant number of actions at the managing partner’s direction and submitted false statements about her actions afterwards during her disciplinary proceedings. Similarly, in Matter of Thalasinos, 981 N.Y.S.2d 714 (App. Div. 2014) (per curiam), a New York lawyer who aided UPL by assisting a suspended immigration lawyer had his license revoked for one year.

In Matter of Terc, 987 N.Y.S.2d 865, 866 (App. Div. 2014) (per curiam), the court publicly censured a New York lawyer who aided UPL by forming a New York City practice under the name of a Peruvian lawyer whose status as a foreign legal consultant prohibited him from holding himself out as a New York−licensed lawyer. But see New York Opinion 1072 (Nov. 13, 2015) (New York lawyer can enter into law partnership with patent specialist in Japan who is authorized to practice intellectual property law in Japan even though such practitioners do not need law degree).

New York Opinion 1025 (Sept. 30, 2014) advised that a professional conduct rule requiring lawyers to list their “principal law office address” did not prohibit a nonresident lawyer licensed in New York from providing legal services to New York residents through a “purely virtual” practice operated outside New York. In Schoenefeld v New York, 29 N.E.3d 230 (N.Y. 2015), however, the court ruled that a lawyer admitted in New York who lives in another state but wishes to practice in New York must follow N.Y. Jud. Law § 470 (2010) and maintain a physical office in the state. The Second Circuit upheld the constitutionality of this requirement in Schoenefeld v. Schneiderman, 821 F.3d 273 (2d Cir. 2016), cert. denied, 137 S. Ct. 1580 (upholding the constitutionality of Section 470) (2017).

Following Schoenefeld, a trial judge in Nassau County, New York removed a Utah-based lawyer and a California firm as counsel for the defendants for failure to maintain a physical office in the state in violation of Section 470. The Utah lawyer argued that he was admitted to practice in New York and was representing the defendants in his capacity as “of-counsel” to the California firm, which maintained office space at two locations in New York. The court rejected these arguments, stating that it could not overlook the fact that neither the lawyer

nor the firm had any “attorneys or law firm staff at either of the two New York addresses that they claim to be located at.” See Platinum Rapid Funding Grp., Ltd. v. HDW of Raleigh, Inc., 2017 N.Y. Misc. LEXIS 5114, 2017 WL 6806296 (Sup. Ct., Nassau Cty. Dec. 20, 2017). Effective November 1, 2013, UPL in New York became a Class E felony in some circumstances, rather than a misdemeanor, under the terms of N.Y. Jud. Law § 485-a (2018).

Conversely, new rules of admission to practice authorizing lawyers not licensed in New York to practice in New York on a temporary basis became effective December 30, 2015. See 22 NYCRR Part 523. This rule differs from the MJP rules of most other states by allowing temporary practice in New York not only by lawyers admitted in other states, but also by lawyers licensed in non-U.S. jurisdictions. Simultaneously, the New York courts adopted rule amendments that permit lawyers licensed in non-U.S. jurisdictions to work permanently in New York as registered in-house counsel. See Joan C. Rogers, New York Okays Temporary Practice by Outside Lawyers, 31 Law. Man. Prof. Conduct 758 (Dec. 30, 2015).

New York City Opinion 2013-3 (Oct. 29, 2013) advised that a New York law firm may designate a New York−licensed lawyer who lives and practices in another country as “of counsel” so long as: (1) the firm and the lawyer have a “continuing relationship” as required by New York Rule of Prof’l Conduct 7.5(a)(4); (2) the “of counsel” designation is not false or misleading; and (3) the lawyer’s foreign practice does not constitute UPL in that jurisdiction.

New York State Opinion 889 (Nov. 15, 2011) held that a New York−licensed lawyer who practices in a District of Columbia partnership that includes a nonlawyer may perform occasional legal services in New York without violating New York’s rule against sharing legal fees with nonlawyers.

New York State Opinion 801 (Nov. 17, 2006) addressed a New York lawyer’s proposal to form a professional partnership with an out-of-state lawyer who would work on New York matters under the admitted lawyer’s supervision. The opinion concluded that this partnership would be unethical if the out-of-state lawyer’s work constituted UPL. Because New York statutes, not the professional conduct rules, govern unauthorized practice, the committee did not opine on whether the out-of-state lawyer would violate New York’s unauthorized practice statutes.

For an application of New York UPL rules in the fee dispute context, see generally Spivak v. Sachs, 211 N.E.2d 329 (N.Y. 1965). In a troubling decision for New York lawyers who sometimes practice in other states, Cinao v. Reers, 893 N.Y.S.2d 851, 857 (Sup. Ct., Kings Cty. 2010), held that N.Y. Jud. Law § 487, which imposes criminal penalties and permits recovery of treble damages for certain lawyer misconduct, applies to conduct by New York lawyers in courts outside of New York. The decision rejected precedents from both federal and state courts that had reached a contrary conclusion about the scope of Section 487.

North Carolina. The North Carolina State Bar entered into a consent decree with LegalZoom that settled a proceeding alleging the company was engaged in UPL. Under the consent decree, LegalZoom can generate legal documents online for consumers provided that certain specific procedures are followed, including the review of all templates by a North Carolina lawyer. See Joan C. Rogers, Settlement Allows LegalZoom to Offer Legal Services in N.C., 31 Law. Man. Prof. Conduct 676 (Nov. 16, 2015); see also Samson Habte, Suit Challenging Ban on Corporate Law Practice Survives, 31 Law. Man. Prof. Conduct 532 (Sept. 8, 2015) (business association may continue suit challenging North Carolina’s ban on practice of law by business corporations). This rash of litigation finally led, in mid-2016, to enactment of a statute clarifying when automated preparation of legal documents by nonlawyers does not constitute UPL. See Joan C. Rogers, N.C. Law Regulates Interactive Legal Doc Providers, 32 Law. Man. Prof. Conduct (July 27, 2016).

North Dakota. In January 2017, the North Dakota Supreme Court entered an order adopting streamlined procedures allowing out-of-state lawyers to defend Dakota Access Pipeline protesters in criminal proceedings on a temporary basis. The order is unusual in that it relaxes the state’s temporary admission requirements for an interim period rather than making a permanent change to the MJP rules. The court stated that it exercised its discretion in in this regard because of “the potential for delay or inconvenience for litigants due to the relatively large number of arrests and finite resources to handle the judicial proceedings related to those arrests.” This framework allowed out-of-state lawyers to represent protesters on a pro bono basis provided they are licensed in another state and in good standing everywhere. Although out-of-state lawyers must associate with a licensed North Dakota lawyer as required by N.D. Admission Prac. R. 3, the associated lawyer does not have to appear in person and remain in court for all proceedings unless the presiding judge enters an order otherwise. See In re Petition to Permit Temp. Provision of Legal Servs., 889 N.W.2d 399 (N.D. 2017) (per curiam).

Out-of-state lawyers who successfully persuaded a state agency to reverse a workers’ compensation award engaged in UPL, voiding the agency’s decision. See Carlson v. Workforce Safety & Ins., 765 N.W.2d 691

(N.D. 2009). Similarly, an out-of-state lawyer engaged in UPL by filing an administrative appeal, rendering the appeal void. See Blume Constr., Inc. v. State, 872 N.W.2d 312 (2015).

In In re Gerber, 868 N.W.2d 861 (N.D. 2015), a Minneapolis firm employed a lawyer for a year as a “staff attorney” in its North Dakota office. Although the lawyer was admitted in Minnesota, he was not admitted in North Dakota. Before leaving the firm, the lawyer applied for admission to the State Bar Association. After reviewing his application, the North Dakota bar examiners asked for more information about his work as a “staff attorney.” In response, the lawyer submitted an affidavit describing his position as a “government relations attorney” and “staff attorney.” He further explained that his responsibilities included researching title, drafting title opinions, and lobbying work. The North Dakota Supreme Court found that the lawyer engaged in UPL by holding himself out as authorized to practice in the state. Among other things, the court took note of the firm’s press release announcing the lawyer’s hiring without any disclaimers, the lawyer’s own statements that he self-identified as a lawyer, and the lawyer’s entry of nearly 2,500 billable hours for the year.

In Disciplinary Bd. of Supreme Court v. Meidinger, 853 N.W.2d 43 (N.D. 2014), the lawyer was admitted to practice only in Minnesota and maintained a law office in North Dakota. After appearing in 17 matters pro hac vice, the State Bar Association strongly encouraged her to become licensed in the state because her appearances were more than occasional. The lawyer failed to do so and the North Dakota Supreme Court found that she violated Rule 5.5(a) and (c). The lawyer was suspended for one month, barred from future pro hac vice admissions, and ordered to pay the costs and expenses for the disciplinary proceedings.

Ohio. In Ohio State Bar Ass’n v. Klosk, 2018 Ohio LEXIS 2850, 2018 WL 6521533 (Dec. 11, 2018), an Ohio resident executed a power of attorney appointing a California lawyer as his “true and lawful attorney” for the purposes of negotiating a debt on his behalf in Ohio. The California lawyer then sent a letter on his firm’s letterhead to the creditor’s counsel in Ohio confirming that the debtor was his client. The Ohio Supreme Court concluded that “there is no doubt” that “an individual who is not licensed to practice law in Ohio who negotiates legal claims on behalf of Ohio residents or advises Ohio residents of their legal rights or the terms and conditions of settlement is engaged in the unauthorized practice of law.” The court fined the California lawyer $2,000 and enjoined him from practicing law in Ohio.

In In re Application of Jones, 2018 Ohio LEXIS 2470, 2018 WL 5076017 (Oct. 17, 2018), a Kentucky lawyer was hired by an Ohio law firm and promptly filed her application for admission to the Ohio bar. The lawyer’s application remained pending for more than two years during which time she worked out of her firm’s Ohio office and handled only matters “related to … proceedings before tribunals in Kentucky.” The Ohio Supreme Court found that the lawyer did not engage in UPL and specifically noted that the lawyer filed her application before moving to Ohio and her “practice from Ohio pending her application is on a temporary basis because the continuation of her practice depends on the resolution of her application.” The court went on to say that temporary services can include services provided on a “recurring basis, or for an extended period of time.”

In Disciplinary Counsel v. Maciak, 102 N.E.3d 485 (Ohio 2018), the Ohio Supreme Court suspended a lawyer for two years for failing to comply with his CLE and attorney registration requirements for seven years. The court stayed the suspension, however, based on the “specific and narrow facts of [the lawyer’s] proven misconduct, the substantial evidence of his good character and remorse, and the affirmative steps he has taken to prevent similar violations in the future.”

Ohio Board of Professional Conduct Opinion 2017-05 (June 9, 2017) concluded that Ohio lawyers may use technology to practice law via a “virtual law office,” but close scrutiny will be given to the lawyer’s compliance with the rules of professional conduct regarding competence, communication with clients, confidentiality, and the supervision of nonlawyer vendors. The lawyer’s “office address” for the purposes of communications may be the lawyer’s home or physical office, shared office space, or a registered post office box. If the virtual office involves sharing nonexclusive office space with other professionals, the lawyer must take special precautions to ensure that client confidentiality and communications are adequately protected.

In In re Egan, 2017 Ohio LEXIS 2360, 2017 WL 5661646 (Nov. 22, 2017), the Ohio Supreme Court found that a lawyer who was admitted to practice only in Kentucky had engaged in UPL for more than 10 years by establishing offices in Ohio where she practiced Kentucky law. The court, however, approved the lawyer’s application for admission to the Ohio bar based on the fact that she did not engage in the practice of Ohio law. The court also took into account the lawyer’s “exemplary character and professional reputation” as well as the steps the lawyer and her current firm took “to relocate her practice to Kentucky once they realized the import of her conduct.”

In Cleveland Metro. Bar Ass’n v. Wallace, 65 N.E.3d 731 (Ohio 2016), the Ohio Supreme Court found that two nonlawyers engaged in UPL when they solicited Ohio residents to file tax assessment complaints and appeals with the Ohio Board of Tax Appeals. In one filing, the nonlawyers prepared documents listing an Ohio-

admitted lawyer as the lawyer for the property owners, but with a post office box rented and controlled by the nonlawyers. In addition, all matters originated with the nonlawyers and not the Ohio lawyer. The court fined and enjoined the nonlawyers from the practice of law.

In In re Resignation of McGrath, 49 N.E.3d 311 (Ohio 2016), the lawyer represented indigent clients for a legal aid organization in Buffalo, New York for 12 years without being licensed to practice in the state. After a client complained about his conduct, the lawyer pled guilty to UPL and second-degree grand larceny. In his purported defense, the lawyer claimed “nobody asked for proof.” The lawyer was allowed to resign from the Ohio State Bar Association with disciplinary charges pending.

In In re Application of Swendiman, 57 N.E.3d 1155 (Ohio 2016), a lawyer who had not engaged in private practice for many years joined a firm in Ohio, where he was not admitted. His practice was limited to advising on federal securities law. While the Ohio Supreme Court recognized that the lawyer’s conduct was unintentional, it found that he had maintained a “systematic and continuous presence” in Ohio without being licensed there. The court noted the lawyer’s role in client development, serving as a resource to the firm’s securities lawyers, and six-month delay in applying for admission to the Ohio State Bar (without examination). The court allowed the lawyer to reapply for admission, subject to a character and fitness evaluation.

Ohio Board of Professional Conduct Advisory Opinion 2016-9 (Dec. 9, 2016) provides that an out-of-state lawyer who is licensed and in good standing in another state and who practices exclusively before federal courts or agencies, may maintain an office or other systematic and continuous presence in Ohio. The lawyer, however, must refrain from providing legal services based on Ohio law and take affirmative steps to communicate that the lawyer is not admitted to practice in Ohio through his letterhead, business cards, website, etc.

On July 22, 2016, an antitrust suit by New Orleans-based Express Lien Inc. against the Cleveland Metropolitan Bar Association and three members of its UPL Committee was settled. The suit concerned whether Express Lien could offer its cloud-based mechanic’s lien software to Ohio customers. See Joan C. Rogers, Settlement Ends Antitrust Suit Over Ohio UPL Charges, 32 Law. Man. Prof. Conduct 453 (July 27, 2016).

In 2013, the Ohio Supreme Court eliminated the requirement that lawyers seeking admission to practice without examination must declare their intent to practice law in Ohio. See Rules for the Government of the Bar of Ohio, R. I (Admission to the Practice of Law), § 9. In 2004, Ohio enacted a statute authorizing a private cause of action for damages resulting from UPL. See Ohio Rev. Code Ann. § 4705.07(C)(2) (2017).

State ex rel. Hadley v. Pike, 2014 Ohio App. LEXIS 3239, at *9−10, 2014 WL 3744717, at *4 (July 25, 2014), held that a complaint filed in an Ohio court was void because it was filed by an out-of-state lawyer who had not been granted pro hac vice status by an Ohio court.

In Disciplinary Counsel v. Harris, 996 N.E.2d 921, 924−25 (2013), the Ohio Supreme Court held that it could not assert disciplinary authority over a bankruptcy lawyer admitted in other jurisdictions (D.C. and both federal district courts in Ohio), but not licensed in Ohio, “because [he] is not a member of the Ohio bar.” Id. at 923. The court did, however, refer three of the four charges against the lawyer to the court’s UPL Board to consider whether the conduct violated Ohio’s UPL rules.

Analyzing Ohio Rule of Professional Conduct 5.5 for the first time, Ohio Opinion 2011-2 (Oct. 7, 2011) advises that a national law firm staffed by lawyers located outside, and not licensed in, Ohio may not offer debt relief services to Ohio residents where the representation is not related to the lawyers’ home state and the clients have no prior relationship with the firm.

In Disciplinary Counsel v. Glover, 876 N.E.2d 576, 577 (Ohio 2007), the Ohio Supreme Court permanently disbarred an Ohio-admitted lawyer who had been enjoined by the Delaware Supreme Court from engaging in the UPL in Delaware, but had ignored that order and, therefore, had been “disbarred” by the Delaware Supreme Court.

In Disciplinary Counsel v. Alexicole, Inc., 822 N.E.2d 348, 350 (Ohio 2004), the court held that it was UPL for a company owned and operated by a nonlawyer to represent Ohio residents at NASD arbitrations in Ohio. The decision noted that the company’s principal “is not and has never been an attorney admitted to practice law … in the state of Ohio pursuant to [Ohio Supreme Court Rules].” Id. at 349. Although Alexicole involved UPL by a nonlawyer, the AAA was apparently concerned enough about its possible effect on out-of-state lawyers that it sent copies of the opinion to non-Ohio lawyers representing Ohio residents in AAA arbitrations conducted in Ohio.

Two examples of Ohio cases charging a lawyer admitted in another jurisdiction with UPL in Ohio are Cleveland Bar Ass’n v. Moore, 722 N.E.2d 514 (Ohio 2000), and Cleveland Bar Ass’n v. Misch, 695 N.E.2d 244 (Ohio 1998).

Oklahoma. Oklahoma-licensed lawyer who engaged in UPL in Colorado and Wyoming was disbarred by the Oklahoma Supreme Court as a matter of reciprocal discipline. See State ex rel, Okla. Bar Ass’n v. Auer, 376 P.3d 243 (2016).

Oregon. In In re Complaint As to the Conduct of Abrell, 2016 Or. LEXIS 865 (Sept. 1, 2016), the lawyer was admitted in Washington, but his license was administratively suspended. The lawyer was admitted pro hac vice in federal district court in Oregon, where he associated with local counsel in an estate matter that was resolved by settlement agreement. After one of the parties breached the agreement, the lawyer filed an action in Oregon state court to enforce it. The lawyer falsely represented that he had applied for pro hac vice admission in state court, and that local counsel in the federal case would also serve in the same role in state court. He received a one-year suspension for UPL and making false statements to the court.

Pennsylvania. The U.S. Court of Appeals for the Third Circuit held that a federal district court’s authority to determine who may practice law before it preempted Pennsylvania case law that barred an unlicensed lawyer from maintaining a law office in Pennsylvania for the sole purpose of maintaining a federal practice. See Surrick v. Killion, 449 F.3d 520, 532−33 (3d Cir. 2006). That portion of Surrick’s holding conflicted with Office of Disciplinary Counsel v. Marcone, 855 A.2d 654 (Pa. 2004), in which the Pennsylvania Supreme Court held that a lawyer suspended from the Pennsylvania Bar but readmitted to a federal district court could not maintain an office in Pennsylvania. Surrick also may conflict with Gould, 470 F. Supp. 2d at 1357 (lawyer residing but not licensed in Florida could not advertise for clients in Florida who might need help with New York or federal matters).

In an unpublished opinion, the Third Circuit held that a lawyer’s admission to practice before a federal district court in Pennsylvania did not authorize him to represent clients in state law matters after his Pennsylvania license had been suspended. See In re Marcone, 395 F. App’x 807, 809 (3d Cir. 2010).

Out-of-state lawyers are generally welcome to participate in arbitrations in Pennsylvania. Philadelphia Opinion 2003-13 (Dec. 2003) opined that although Pennsylvania had not yet adopted ABA Model Rule 5.5, which had been recommended by the State Bar Association House of Delegates (and has since been adopted by the Pennsylvania Supreme Court), it was permissible for a lawyer admitted only in another state to participate in an alternative dispute resolution (ADR) proceeding conducted in Pennsylvania.

In Office of Disciplinary Counsel v. Schwartz, 2015 Pa. LEXIS 455 (Feb. 25, 2015), the lawyer represented a client in a personal injury case in Louisiana even though he was admitted to practice only in Pennsylvania. The lawyer was listed on the docket as the attorney of record, assisted in preparing answers to interrogatories, and participated in depositions. He failed, however, to seek pro hac vice admission in Louisiana. By agreement, the lawyer was suspended for three years in Louisiana. Pennsylvania also imposed a retroactive three-year suspension by agreement.

In Office of Disciplinary Counsel v. Weinstein, 2014 Pa. LEXIS 1892 (July 28, 2014), the lawyer was disbarred for failing to communicate with clients, not informing them of fee sharing agreements, failing to disclose conflicts of interest, and UPL. With respect to the latter, he allowed nonlawyers to provide legal advice on estate planning matters to senior citizens. The nonlawyers also delivered estate planning documents to clients and attempted to sell annuities to them at the time of delivery. These violations occurred when the lawyer was already subject to an interim consent decree that required him to refrain from many of the same activities.

Rhode Island. In re Levine, 840 A.2d 1098, 1099 (R.I. 2003) (courts have disciplinary jurisdiction over out-of-state pro hac vice lawyers). In Dennett v. Archuleta, 982 F. Supp. 2d 166, 170–72 (D.R.I. 2013), the court denied a Texas law firm’s motion to dismiss a private claim based on the law firm’s alleged UPL in Rhode Island, although the court cited no Rhode Island authority approving such a private cause of action.

South Carolina. South Carolina Rule of Professional Conduct 5.5 must be read in conjunction with South Carolina Appellate Court Rule 404, which addresses pro hac vice admissions and appearances in ADR matters. Like its Model Rule counterpart, South Carolina Rule 5.5 addresses out-of-state lawyers representing clients in South Carolina on a “temporary” basis. Like Florida Rule of Judicial Administration 2.510(a), South Carolina Rule 404(k) states that a “lawyer who is not admitted to practice in South Carolina who seeks to provide legal services pursuant to Rule 5.5(c)(3) in more than three matters in a calendar year shall be presumed to be providing legal services on a regular, not temporary, basis.”

In Matter of McKeever, 805 S.E.2d 201 (S.C. 2017), the lawyer moved to South Carolina to handle foreclosure proceedings in the state despite only being admitted to practice law in Kentucky. Throughout these proceedings, the lawyer was not eligible to appear pro hac vice because she resided in South Carolina and was regularly engaged in the practice of law as well as other substantial business activities in the state. The South Carolina Supreme Court found that the lawyer violated more than a dozen professional conduct rules and permanently banned the lawyer from practicing in the state.

In In re Reitzel, 768 S.E.2d 667 (S.C. 2015), the lawyer was licensed in North Carolina and filed an answer in a foreclosure action in South Carolina without applying for pro hac vice admission. After opposing counsel questioned his authority to practice in South Carolina, the lawyer stated that he frequently practiced in the state without any complaint up to that point. He was permanently disbarred from any admission (including pro hac vice) without prior approval of the South Carolina Supreme Court. The lawyer was also suspended from the practice of law in the U.S. District Court for the Middle District of North Carolina.

In In re Berger, 759 S.E.2d 716 (S.C. 2014), the lawyer was licensed in Florida, but not South Carolina. In two foreclosure cases, he solicited and represented clients in South Carolina, claiming he would seek local counsel but never did. One client provided a retainer via a monthly deduction from her checking account. The lawyer proved unreachable for the next six months and the client hired new counsel. Regardless, the lawyer continued to withdraw money for his attorney’s fees from the client’s checking account. A second client was also unable to reach the lawyer, who again continued to remove funds from that client’s account for fees even after the court entered a default judgment. The South Carolina Supreme Court permanently disbarred the lawyer from practicing in the state. The lawyer was also ordered to reimburse all fees and costs in these matters.

In In re Defillo, 762 S.E.2d 552 (S.C. 2014), the lawyer was licensed only in Florida and maintained an office in South Carolina. The lawyer’s website promoted her federal immigration practice as well as her experience handling matters involving state law. In addition, her website referred to other associates in the firm even though the lawyer was a solo practitioner. The lawyer’s letterhead, business cards, and other printed materials contained the phrase “Attorneys and Counselors at Law” and failed to indicate her geographic limitations to practice law. The South Carolina Supreme Court permanently disbarred the lawyer and banned her from advertising in the state without prior order from the court. As reciprocal discipline, she was permanently disbarred in Florida as well.

A South Carolina case points out the need to be careful when delegating certain tasks to nonlawyers. In Doe Law Firm v. Richardson, 636 S.E.2d 866, 868 (S.C. 2006), the court decided that the disbursement of loan proceeds in conjunction with a residential refinancing or credit line transaction is the practice of law and so must be conducted under a lawyer’s supervision.

Texas. The Texas Supreme Court held in Touchy v. Houston Legal Found., 432 S.W.2d 690, 694 (Tex. 1968), that lawyers licensed in Texas could sue to enjoin the UPL in Texas by unlicensed persons.

Texas Opinion 597 (May 2010) advised that lawyers licensed and normally practicing outside of Texas may occasionally perform legal services in their firm’s Texas offices if they do not establish a systematic and continuous presence in Texas. Lawyers who reside, and are licensed, outside of Texas and are not members of the State Bar of Texas must pay a fee of $250 per case to be admitted pro hac vice in cases pending in Texas courts. See Tex. Gov’t Code Ann. § 82.0361 (2017).

Utah. In Winston & Strawn, LLP, the fact that an out-of-state law firm was not admitted pro hac vice did not bar it from collecting fees where the firm did not make courtroom appearances and was associated with local counsel throughout case.

Virgin Islands. The Virgin Islands has not adopted Model Rule 5.5 and its prohibition on UPL is set forth in Rule 211.5.5 of the Virgin Islands Rules of Professional Conduct (prohibiting an out-of-jurisdiction lawyer from establishing “an office or other systematic and continuous presence” or “hold[ing] out to the public or otherwise represent that he or she is admitted to practice law”) and title 4, Section 443 of the Virgin Islands Code (defining UPL as “any act … usually done by attorneys-at-law in the course of their profession”). Virgin Islands Supreme Court Rule 201(a)(4), which provides for pro hac vice admission of non–Virgin Island lawyers in V.I. litigation matters, states that “[n]o attorney or law firm may appear pro hac vice in more than a total of three causes.”

In In re: Jindal, 2018 V.I. Supreme LEXIS 38, 2018 WL 6267124 (Nov. 29, 2018), three lawyers with a large U.S. firm represented a client in a consumer fraud action pending in the Virgin Islands. Local counsel moved for the pro hac vice admission of the lawyers and the V.I. Supreme Court granted the motion on one condition—the attorneys had to take the pro hac vice attorney oath to complete the process for temporary admission to practice in the jurisdiction. The lawyers never took that oath. After the trial court dismissed the claims against the client, local counsel filed a motion for attorneys’ fees, which attached the affidavits of the lawyers. In response, the plaintiffs filed a complaint with the V.I. Supreme Court stating that the affidavits violated the court’s pro hac vice order and may constitute UPL. The supreme court held that the lawyers’ affidavits “clearly demonstrate that they held themselves out as lawyers with respect to this matter.” In addition to denying pro hac vice admission, the court referred the matter to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on UPL, and the V.I. Attorney General because the “underlying conduct may potentially warrant action beyond the denial of pro hac vice admission.”

In In re Shores, 59 V.I. 994 (2013) (per curiam), two lawyers with a major U.S. firm sought pro hac vice admission to represent a client in a V.I. litigation matter, stating that neither had ever been granted such admission. But court records established that other firm lawyers had previously been granted pro hac vice admission 29 times. As a result, the V.I. Supreme Court held that the prior pro hac vice admissions of other firm lawyers must be imputed to these lawyers and denied them admission.

Virginia. Virginia Opinion 1872 (Mar. 29, 2013) considered which ethics rules apply when a Virginia lawyer operates a “virtual law office” rather than a traditional brick-and-mortar office. The opinion concluded that so long as a Virginia-licensed lawyer fulfills the duties of competence, confidentiality, supervisory responsibility for other lawyers and nonlawyers, and avoidance of false, fraudulent, misleading, or deceptive communications, the ethics rules do not prohibit virtual law offices. The opinion, however, points out that the answer is different for lawyers who have been admitted by motion rather than by bar exam, or are seeking such admission. This is because Regulation 7 of the Regulations Governing Applications for Admission to the Virginia Bar requires that a lawyer admitted or seeking admission by motion “maintain an office in Virginia where clients can be seen on the premises,” and specifically provides that virtual offices (and even shared occupancy arrangements) do not satisfy this requirement.

Virginia Opinion 1856 (Sep. 19, 2011) explores what lawyers who are not licensed in Virginia, but have established a systematic and continuous presence there, can do for out-of-state clients without violating Virginia’s UPL restrictions. Essentially, such lawyers must limit their practices to the law of jurisdictions where they are licensed, and may only “advise clients and render legal opinions to clients located in other states or countries.”

Out-of-state lawyers cannot sign pleadings in Virginia courts on behalf of either pro se plaintiffs or licensed Virginia lawyers. See Shipe v. Hunter, 699 S.E.2d 519, 520 (Va. 2010); Aguilera v. Christian, 699 S.E.2d 517, 519 (Va. 2010). A pleading signed by a foreign lawyer and filed in a Virginia court is invalid and has no legal effect. See Nerri v. Adu-Gyamfi, 613 S.E.2d 429, 430−31 (Va. 2005). The court in Jones v. Jones, 635 S.E.2d 694 (Va. Ct. App. 2006), applied this “bright-line rule” to dismiss a wife’s appeal in a divorce case because her lawyer filed the notice of appeal during a 30-day period when his license was suspended, stating that “the status of an attorney during the time his or her license is administratively suspended is no different from that of an individual or an attorney who has never been licensed in Virginia—neither is authorized to practice law in this Commonwealth and both are subject to prosecution for practicing law without a license,” 635 S.E.2d at 696 (quoting Nerri, 613 S.E.2d at 430). Similarly, in Wellmore Coal Corp. v. Harman Mining Corp., 568 S.E.2d 671, 673 (Va. 2002), the Virginia Supreme Court dismissed an appeal because only an out-of-state lawyer had signed the notice of appeal.

Yet Virginia does tolerate some practice by out-of-state lawyers. See Va. Sup. Ct. R. pt. 6, § I. In addition, a registered U.S. patent attorney who is not licensed in Virginia can give legal advice from a Virginia office on matters that are related exclusively to patent law, provided that the lawyer “is not in any manner attempting to practice Virginia law,” regardless of where the clients are located. See Virginia State Bar Standing Comm. on Unauthorized Practice of Law Opinion 210 (Aug. 8, 2006), citing Virginia UPL Rule 9-102 and Sperry v. Florida, 373 U.S. 379 (1963). Although a patent lawyer not admitted in Virginia may do patent law work in Virginia without the supervision of a Virginia lawyer, the lawyer must disclose the limitations on the lawyer’s practice on letterhead and business cards. Similarly, Virginia State Bar Standing Committee on Unauthorized Practice of Law Opinion 201 (Oct. 1, 2001) previously found that a lawyer with a federal practice in a multijurisdictional law firm can represent Virginia clients before federal agencies without being admitted in Virginia.

Washington. In Kim v. Desert Document Servs., Inc., 2000 Wash. App. LEXIS 1216, at *13-4, 2000 WL 987005, at *5 (July 17, 2000), the court held that Washington recognizes a private right of action for restitution, injunction, and damages resulting from UPL (unpublished opinion).

West Virginia. UPL claims are subject to contractual arbitration in West Virginia despite the argument that state public policy forbids it. See Geological Assessment & Leasing v. O’Hara, 780 S.E. 2d 647 (W.Va. 2015). In State ex rel. York v. West Virginia Office of Disciplinary Counsel, 744 S.E.2d 293, 301−02 (W. Va. 2013), the court held that an Ohio-licensed lawyer practicing patent law in West Virginia is subject to the disciplinary jurisdiction of West Virginia courts. In 2004, the same court held that UPL claims may be brought by the state, the profession, or nonlawyers who claim to have been harmed by the alleged UPL. See McMahon v. Adv. Title Servs. Co., 607 S.E.2d 519, 523−24 (W. Va. 2004).

Wisconsin. In In re Aleman, 872 N.W.2d 655 (Wis. 2015), the lawyer was admitted to practice in Illinois and Wisconsin, but his Wisconsin license was administratively suspended for failure to complete continuing legal education requirements. Regardless, the lawyer represented thousands of residents in Illinois and elsewhere with consumer debt problems. Rather than handle the matters himself, the lawyer subcontracted most of the work to nonlawyer debt settlement companies in other states with little, if any, supervision. The Illinois Supreme Court suspended the lawyer for two years and Wisconsin imposed reciprocal discipline.

In In re Fischer, 852 N.W.2d 487 (Wis. 2014), the lawyer was admitted in Wisconsin and Minnesota. He engaged in misconduct that included failure to supervise a suspended lawyer and assisting a suspended lawyer in UPL. The lawyer’s other misconduct included failing to provide the Minnesota Director of the Office of Lawyers Professional Responsibility with timely notice of the suspended lawyer’s employment, using misleading letterhead and law firm signage, and failing to communicate with clients. The Wisconsin Supreme Court publicly reprimanded the lawyer and Minnesota imposed reciprocal discipline.

In re Mostkoff, 693 N.W.2d 748, 752−53 (Wis. 2005) affirmed the rejection of a bar application from a lawyer who had significant experience in another state before moving to Wisconsin to work as an in-house lawyer for nearly four years. The lawyer sought admission under the Wisconsin rule requiring an active practice for three out of the previous five years. The court held that he failed to meet that standard, however, because the in-house work he performed for four years was not in a jurisdiction where he was admitted to practice.

In Seitzinger v. Community Health Network, 676 N.W.2d 426, 434−35 (Wis. 2004), the Wisconsin Supreme Court held that a New Jersey lawyer (who was also a board-certified specialist in obstetrics and gynecology and in gynecologic oncology) could not represent a client, Seitzinger, in a medical peer-review proceeding because the lawyer was not admitted in Wisconsin, and could not appear pro hac vice because the Wisconsin Supreme Court rule authorizing such appearances applied only to court proceedings.

Wyoming. Wyoming adopted a modified version of Model Rule 5.5 that sharply curtails an out-of-state lawyer’s ability to perform legal services in that state. Wyoming Rule of Professional Conduct 5.5 generally limits out-of-state lawyers to: (1) appearing in court with a Wyoming-admitted lawyer “who actively participates in the matter”; (2) providing legal services as an in-house lawyer to the lawyer’s employer and the employer’s affiliates; and (3) providing services that federal or tribal law authorize the lawyer to provide.

Other Limitations on Out-of-State Lawyers In addition to prohibitions on UPL, which exist in virtually every U.S. jurisdiction, some states have other

kinds of limitations on out-of-state lawyers. For example, in New Jersey, out-of-lawyers may not serve as bond counsel for New Jersey state and local governmental agencies unless they are engaged by New Jersey bond counsel who retain overall responsibility for the representation or are engaged directly by the agencies when the representation presents issues that are complex, novel, or involve untested legal theories. See In re Op. 33, 733 A.2d at 487−88. Another example is a Texas statute that expressly requires that documents affecting the title to real estate located in Texas be prepared or supervised by lawyers admitted to practice there. See Tex. Gov’t Code Ann. § 83.001 (2014).

Even before the recent trend to adopt liberalized ABA Model Rules 5.5 and 8.5, there were a few exceptions to the generally restrictive terms of most state UPL statutes and rules. One is Mich. Comp. Laws Ann. § 600.916, which provides that legal services rendered in Michigan by lawyers licensed in other jurisdictions “while temporarily in this state and engaged in a particular matter” do not constitute UPL. Virginia also has a UPL rule that permits occasional practice in Virginia by out-of-state lawyers. See Va. Sup. Ct. R. pt. 6, § I.

A risk for non-Delaware lawyers who advise Delaware corporations was created by the Court of Chancery decision in Sample, 935 A.2d at 1046 (see Delaware discussion above), which held that a Delaware court had personal jurisdiction over an Ohio lawyer and law firm that had advised an Ohio-based Delaware corporation in Ohio about Delaware corporate law, and had allegedly aided and abetted breaches of fiduciary duty by the corporation’s directors. The firm had no office and no lawyers admitted in Delaware, and the only act the lawyer had performed “in Delaware” was mailing a certificate amendment to the Corporation Service Company in Delaware for filing.

Assessing and Addressing Risks of Multistate Law Practice Court and Administrative Proceedings

Representing clients in out-of-state court proceedings is almost always governed by rules of the court in which the matter is pending. These rules usually provide for admission pro hac vice of lawyers licensed in other jurisdictions. Many such rules require that the out-of-state lawyer associate with local counsel and agree to be subject to the disciplinary jurisdiction of the courts of the state. In some states, the courts assert disciplinary jurisdiction over out-of-state lawyers admitted pro hac vice, even if the lawyer did not so agree. See, e.g., Levine, 840 A.2d at 1099. Some state administrative agencies have similar rules. When in doubt, the out-of-state lawyer should seek guidance from the agency or tribunal concerned about whether the lawyer may appear before the agency or tribunal without local counsel. Some states impose limitations on how often a lawyer or firm may appear pro hac vice, or create other obstacles to the admission of out-of-state lawyers.

Other states defer to a local client’s desire to be represented by out-of-state counsel, and they establish a presumption that applications for pro hac vice admission should be granted absent unusual circumstances. See generally State ex rel. H.K. Porter Co., Inc. v. White, 386 S.E.2d 25 (W. Va. 1989); Enquire Printing & Publ’g Co., Inc. v. O’Reilly, 477 A.2d 648 (Conn. 1984). In Enquire, the Connecticut Supreme Court indicated that a litigant’s request to be represented by out-of-state counsel “should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney.” 477 A.2d at 651. The court added that economic protection for in-state lawyers “is not, of course, a legitimate state interest.” Id.

The U.S. Supreme Court in Leis v. Flynt, 439 U.S. 438 (1979), held that the interest of a lawyer or his client in having that particular lawyer, who is admitted in one state, represent the client pro hac vice in another state, is not a right that is protected by the due process clause of the Fourteenth Amendment or any other federal authority. But cf. United States v. Gonzalez-Lopez, 548 U.S. 140, 148−49 (2006) (trial court’s erroneous denial of lawyer’s pro hac vice motion in criminal case required reversal of conviction based on denial of counsel of choice). Gonzalez-Lopez may undermine an earlier federal appellate decision holding that no federal constitutional authority prevents a state from denying pro hac vice appearance rights to lawyers who reside, but are not admitted to practice, in that state even though they are admitted in other states. See Paciulan v. George, 229 F.3d 1226, 1229−30 (9th Cir. 2000).

ADR Proceedings Arbitration and other forms of ADR may be governed by professional conduct, court, or other rules. When

the parties’ agreement specifies that an ADR proceeding is to be held in a particular jurisdiction, the safest course is probably to seek guidance from the arbitrator or mediator or to arrange for local counsel. See generally McKesson Info. Solutions, Inc. v. Duane Morris, LLP, No. 2006CV121110 (Super. Ct. of Fulton Cty., Ga. Nov. 8, 2006) (applying Georgia conflicts rules to disqualify Georgia lawyers seeking to participate in arbitration occurring in Georgia), vacated (Super. Ct. of Fulton Cty., Ga. Mar. 8, 2007) (finding that “newly discovered evidence” required vacating previously granted permanent injunction). The case for local counsel would be stronger where, in addition to the proceeding itself being in the foreign jurisdiction: (1) one or both parties to the ADR proceeding are based in that jurisdiction, (2) the ADR agreement specifies that the foreign jurisdiction’s law governs legal issues involved in the ADR proceeding, or (3) the proceeding relates to real or personal property located in the foreign jurisdiction.

Model Rule 5.5(c)(3) addresses mediation, arbitration, and other ADR proceedings. California Rule of Court 9.43, Florida Rule Regulating the Florida Bar 1-3.11, and South Carolina Court Rule 404 also specifically regulate an out-of-state lawyer’s participation in arbitrations in a state in which the lawyer is not admitted. Nevertheless, the AAA recommends that out-of-state lawyers planning to participate in arbitrations conducted in states where they are not admitted check with the UPL committee of the state bar or the state supreme court for guidance.

Several decisions and ethics opinions have rejected challenges to arbitration awards based on the argument that a party’s lawyer was not licensed in the jurisdiction where the arbitration occurred. See, e.g., Nolan v. Kenner, 250 P.3d 236, 240 (Ariz. Ct. App. 2011). In Superadio L.P., 844 N.E.2d at 252, the court refused to vacate a Massachusetts arbitration award merely because the lawyers who represented the prevailing party were not admitted to practice in Massachusetts. The court declined to decide, however, whether those lawyers were engaged in UPL. See also Mscisz, 844 N.E.2d at 616 (same). New Jersey Committee on the Unauthorized Practice of Law, Opinion 43 similarly permits an out-of-state lawyer to participate in New Jersey arbitrations if the lawyer complies with New Jersey Rule 5.5. In Colmar, Ltd. v. Fremantlemedia N. Am., Inc., 801 N.E.2d 1017, 1022−23 (Ill. App. Ct. 2003), the court held that participation in an Illinois arbitration by a California lawyer not admitted in Illinois did not invalidate an arbitration award. Similarly, the Seventh Circuit labeled as “dubious” the claim of an investor in an Illinois arbitration that representation of the opposing broker by a non-Illinois lawyer invalidated the arbitrator’s decision. See Sirotzky v. N.Y. Stock Exch., 347 F.3d 985, 989 (7th Cir. 2003), abrogated on other grounds by Martin v. Franklin Capital Corp., 546 U.S. 132 (2005); see also Philadelphia Opinion 2003-13 (same).

On December 24, 2007, the Financial Industry Regulatory Authority (FINRA), successor to the National Association of Securities Dealers, announced that the Securities and Exchange Commission (SEC) had approved FINRA-proposed rule changes to allow lawyers admitted in any U.S. jurisdiction to represent parties in FINRA arbitrations and mediations. Regulatory Notice 07-57, FINRA. The new rules, however, may not resolve all UPL concerns for lawyers who are not admitted in the state where the arbitration occurs. The rules state that they authorize representation by lawyers admitted and in good standing in any U.S. jurisdiction “unless state law prohibits such representation.” FINRA R. 12208, 13208. The rules also permit parties who object to an opponent’s representation by an out-of-state lawyer to raise their objection with the FINRA arbitration panel or mediator and to seek relief from a court or regulatory agency.

Transactional Representations In transactional work, there are a number of factors that might expose a lawyer or firm to a UPL charge in

an out-of-state jurisdiction. A discussion of these factors is contained in Restatement § 3 cmt. e. The following sections identify the six most significant factors that might result in UPL exposure.

Out-of-State Office Physical presence of a lawyer in the foreign jurisdiction is the single riskiest aspect of multistate practice.

Obviously, opening a permanent office in a foreign jurisdiction that is staffed entirely with lawyers not admitted in that jurisdiction is risky, even if the work is for clients not based in that jurisdiction and does not involve the law of that jurisdiction. See generally Kennedy v. Bar Ass’n of Montgomery Cty., Inc., 561 A.2d 200 (Md. 1989) (out-of-state lawyer could not open local office for practice of exclusively federal law); Ranta v. McCarney, 391 N.W.2d 161 (N.D. 1986) (same); Ginsburg v. Kovrak, 139 A.2d 889 (Pa. 1958) (same); Maryland Opinion 2005-07 (same). If a firm intends to have a permanent office in State A, the office should be staffed by one or more lawyers admitted in that state who have sufficient experience to make a credible claim to “supervising” the work of any lawyers not admitted in that state. Even a temporary office in State A staffed entirely with lawyers not admitted in State A could be risky, unless the office is limited to litigation representations in which the out-of-state lawyers have been admitted pro hac vice. If transactional lawyers need work space in State A for a prolonged period, and the firm has no lawyers licensed there, the best solution is probably to use the client’s location or to retain local counsel and arrange to use space in that firm.

Lawyer at Client’s Out-of-State Location Often lawyers travel to an out-of-state client’s location and render legal services there. If this occurs only

on an occasional basis and is incidental to work not related exclusively to the out-of-state jurisdiction, it likely will not be a problem. If the practice is continuous, prolonged, regular, or frequently repeated, it could be a problem, especially if the regular provision of services is combined with other factors discussed in this section.

Multistate or International Clients Location of the client in the out-of-state jurisdiction is second only to the lawyer’s physical presence as a

UPL risk factor. If the out-of-state client is located exclusively in that jurisdiction, it is more likely that an out-of-state lawyer performing legal services for that client in that jurisdiction will create a problem than if the client is a multistate or multinational company with business locations in many jurisdictions. In the latter situation, the lawyer has a better defense to a UPL claim if one or more of the other jurisdictions in which the client operates is a jurisdiction in which the lawyer is admitted.

Other Out-of-State Parties If parties to the transaction other than the client are also located in the out-of-state jurisdiction, the

transaction begins to look more like an out-of-state transaction, especially because some or all of the subject matter (e.g., real estate, inventory) may be located in that jurisdiction, and because the transaction, or some aspects of it, are likely to be governed by that out-of-state jurisdiction’s law. At this point, the firm should consider engaging local counsel, at least to address the local law issues.

Governing Law Often the transactional documents will specify the governing law, at least as to certain issues. If the

governing law is that of a jurisdiction in which no lawyer working on the transaction is admitted, there may be some value to retaining local counsel to review the documents for compliance with the governing out-of-state law, at least if the out-of-state law issues are complex or the size of the transaction will bear the cost of additional counsel.

In situations where the governing law is exclusively federal and there are established procedures for admission to practice before the relevant federal agency, for example, the Internal Revenue Service, the Patent and Trademark Office, the SEC, or U.S. Citizenship and Immigration Services, the supremacy clause of the U.S. Constitution prevents states from attempting to limit a lawyer’s practice before that agency, even in a state in which the lawyer is not licensed. See Sperry, 373 U.S. at 384−86; see also Virginia Opinion 210 (applying Sperry to conclude that registered U.S. patent attorney who is not licensed in Virginia can properly give legal advice from Virginia office on matters that relate exclusively to patent law); District of Columbia Opinion 17-06 (lawyer licensed in another state can run federal court practice from office located in D.C. if lawyer’s letterhead, emails, websites, and court filings make clear that lawyer’s practice is limited to federal issues). This may not be true where there are no separate admission procedures before a federal administrative agency.

Even when the governing law is exclusively federal, regular practice or location of a permanent office in a jurisdiction in which the lawyer is not admitted may not pass UPL muster. See Marcone, 855 A.2d at 668; Maryland Opinion 2005-07; Kennedy, 561 A.2d at 200; Ranta, 391 N.W.2d at 161; Ginsburg, 139 A.2d at 889. But cf. Surrick, 449 F.3d at 534 (disagreeing with Marcone); Philadelphia Opinion 2005-14 (Aug. 2005) (under amended Pennsylvania Rule 5.5, lawyer who is not licensed in Pennsylvania can open Pennsylvania office for limited purpose of practicing immigration law before federal courts); accord Benninghoff v. Superior Court of Orange Cty., 136 Cal. App. 4th 61, 74 (2006) (holding that a disbarred California lawyer could not be prevented from practicing in federal matters in California because of Sperry); see also Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005); In re Poole, 222 F.3d 618 (9th Cir. 2000).

Location of Property Involved If any real or personal property that is the subject of the transaction is located in a foreign jurisdiction, use

of local counsel may be prudent, particularly if there are unique state or local laws applicable to the property. Examples might be land use, zoning, tax, or environmental laws or regulations. Some states have statutes or rules that require documents affecting the title to real estate located in that state to be prepared or supervised by lawyers admitted to practice in that state. See, e.g., Tex. Gov’t Code Ann. § 83.001.

Precautions To Avoid UPL Defense to Claim for Fees Several measures might reduce the likelihood that a client will assert, or will prevail on, a UPL defense to

a claim for fees.

In some cases, a UPL defense to a fee claim might be defeated when the out-of-state lawyer retained local counsel to handle issues relating to that jurisdiction’s law. Model Rule 5.5 (c) expressly states that an unadmitted lawyer who is temporarily present in a foreign jurisdiction does not engage in UPL when the engagement is “undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.” This suggests that the lawyer may forestall a UPL defense to a fee claim by advising the client in writing and in advance about the desirability of retaining local counsel to handle such issues. If the client decides not to retain local counsel, as it often may do to avoid the additional legal fees, a court might find that significant if the client later attempts to assert a UPL defense to the out-of-state lawyer’s fee claim. The client’s informed decision not to hire local counsel notwithstanding the lead lawyer’s advice on the benefits of doing so, especially with contemporaneous written confirmation, also might affect the client’s decision on whether to assert a UPL defense to the firm’s fee claim. If the client does authorize the out-of-state firm to hire local counsel for the matter, that may also help the out-of-state firm overcome a UPL defense to the firm’s later claim for unpaid fees. See generally Winston & Strawn, LLP, 2006 U.S. Dist. LEXIS 24246, 2006 WL 1129401.

Lawyers should consult with clients on UPL issues, including the need to retain local counsel. The firm’s engagement letter with the out-of-state client can recite that the client recognizes that the work for which the firm is retained will require firm lawyers to spend time in one or more jurisdictions in which the lawyers are not licensed, and that the firm and the client have discussed the desirability of the client retaining local counsel in these jurisdictions. If the client rejects this advice, lawyers should document that decision as well. The engagement letter might also specify that the engagement will be governed by the laws of the firm’s home state, not the client’s jurisdiction. The firm should avoid agreement to venue or forum selection clauses that might require the firm to litigate fee disputes in a foreign jurisdiction.

In some representations, it may be necessary that certain meetings and other activities occur in the foreign jurisdiction. In others, however, it may be possible to obtain the client’s agreement (in advance or otherwise) to hold lawyer-client meetings, closings, and other events in the lawyer’s offices or elsewhere in a jurisdiction where the lawyer is admitted, rather than in the foreign jurisdiction. Such an agreement would directly address the greatest single UPL risk factor, the lawyer’s physical presence in a foreign jurisdiction while rendering legal services.

Staffing Multistate Matters When a law firm staffs matters for clients located in other jurisdictions, or matters that the firm anticipates

will involve firm lawyers rendering continuous or frequent legal services in a jurisdiction where the firm has no office, it may be wise to consider whether the firm has lawyers with the required expertise who are already admitted in that foreign jurisdiction. If there are two or more lawyers with the necessary experience, and one of them is already admitted in the relevant jurisdiction, there are obvious advantages to both the client and the firm to staffing the matter with the admitted lawyer. If the firm regularly represents particular out-of-state clients on matters that frequently require a firm lawyer’s presence in the foreign jurisdiction and anticipates continuing to do so, it might consider encouraging the lawyers involved to seek admission in that state. In many states, admission

by motion or by waiver is relatively easy to arrange, at least for lawyers who have been practicing for a number of years.

Lawyers “Telepracticing” from Out of State Some law firms continue to employ lawyers who must, for personal reasons, relocate their residences to

states in which they are not licensed. The following hypothetical, an amalgam of several situations, illustrates the problem.

Senior associate Jones has been with the firm for five years, and has become an expert in handling the commercial lending aspects of transactions involving Latin American customers of firm client Gyro Corporation. Gyro, like the firm, is based in State A. Jones has just learned that he will have to move to State B to accompany his spouse, a recently graduated medical student, who will be doing her multiyear residency in that state. Jones believes he can continue to do the very same work he has been doing at the firm from his home in State B, communicating by email, fax, and telephone with the firm’s principal office. The firm has no State B office. No lawyer in the firm is admitted there, including Jones. Jones does not presently intend to seek a State B license because State B has no admission by waiver, so Jones would have to take and pass the State B bar exam to obtain a State B license. All of Jones’s work for Gyro will flow through the firm’s State A office. Jones’s work will continue to be supervised by the same firm partner who has been supervising it for the last five years. Jones will not deal with any Gyro customers or any lawyers based in State B.

While Gyro is based in State A, where Jones is admitted, he occasionally works on matters affecting other clients located in states other than A. If he moves to State B, his connection to those states will be essentially the same as if he were still located in State A. On these facts, Jones’s and the firm’s exposure to UPL charges in State B (or anywhere else) appears to be minimal.

Change the facts only slightly, however, and UPL risks could increase dramatically. Suppose, for example, that Jones begins to correspond, to consult by telephone, or to travel to meetings with Gyro or its customers directly from his home in State B. In some urgent situations, suppose he performs legal work that is not directly supervised by a State A lawyer. Or suppose that some of the Gyro customers, or some of the lawyers, with whom Jones interacts directly happen to be located in State B. Finally, suppose Jones begins to do work for clients other than Gyro, some of whom may be located in State B. Now the State B enforcement authorities, possibly Gyro, and certainly any State B−based clients, may have some basis for UPL claims (or defenses) against Jones and the firm.

One case that discusses these issues is In re Carlton, 708 F. Supp. 2d 524, 526−27 (D. Md. 2010). The issue there was whether Carlton could claim to have a “principal law office” in Washington, D.C., where she had worked years before and where her law firm employer was based, even though Carlton herself had moved to and did most of her legal work at her home in Cambridge, Massachusetts. After considering all the facts, the court held that Carlton could treat the firm’s Washington office as her “principal law office,” and was therefore permitted to renew her membership in the bar of the federal district court in Maryland. Although its analysis is helpful, Carlton does not answer the question of whether Carlton could be charged with UPL in Massachusetts.

Obviously, the UPL risk in these situations is fact sensitive. Thus, there is no substitute for experienced lawyers evaluating the risk factors described above, and applying judgment to balance the risks and rewards to the firm and the involved lawyer resulting from these arrangements.