Multijurisdictional practice issues for traveling lawyers ethics michael_downey

© 2014 Armstrong Teasdale
LLP
LLP
Multijurisdictional Practice Issues
for Traveling Lawyers
Michael Downey
June 2014

LLP
Consequences of Unauthorized Practice
 Criminal liability
 Discipline
 Civil liability (plus perhaps statutory fees and damages)
 (Greater) malpractice liability
 Privilege issues
 Fee forfeiture issues
 Invalidity of actions (e.g., invalid answer or notice of appeal)
2

LLP
Today's Program
 What is the practice of law
 Who can practice law
 Where can a lawyer practice
 Which rules/court regulate practice
 Review
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LLP
What is the Practice of Law?
4

LLP
"Practicing Law" – 3 Categories
 Activities only lawyers can do (for someone else/for
pay)
• Appear in court
• Sign pleadings
• Take depositions
• Hold oneself out as a lawyer
 Activities lawyers – and select professionals – can do
 Activities that, when done by a lawyer, constitute the
practice of law
5

LLP
ABA Effort to Define "Practice of Law"
 2002 Commission ran into resistance from FTC
 Final recommendation in 2003:
• States should adopt own definition
• Include the "basic premise that the practice of law is the
application of legal principles and judgment to the
circumstances or objectives of another person or entity"
6

LLP
Missouri Definition
It is "impossible to lay down an
exhaustive definition of the 'practice of
law.'" In re First Escrow, Inc., 840 S.W.2d
839, 843 n.6 (Mo. 1992)
7

LLP
Missouri Statute – "Practice of Law"
Mo. Rev. Stat. § 484.010.1
 The "practice of law" is . . . defined to be and is
• the appearance as an advocate in a representative capacity
or
• the drawing of papers, pleadings or documents or
• the performance of any act in such capacity in connection
with proceedings pending or prospective before any court
of record, commissioner, referee or any body, board,
committee or commission constituted by law or having
authority to settle controversies.
8

LLP
Missouri Statute – "Law Business"
Mo. Rev. Stat. § 484.010.1
 The "law business" is . . . defined to be and is
• advising or counseling for a valuable consideration of any
person, firm, association, or corporation as to any secular
law or
• the drawing or the procuring of or assisting in the drawing
for a valuable consideration of any paper, document or
instrument affecting or relating to secular rights or
• the doing of any act for a valuable consideration in a
representative capacity, obtaining or tending to obtain or
securing or tending to secure for any person, firm,
association or corporation any property or property rights
whatsoever.
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LLP
What Is Not the Practice of Law
 Filling in forms – but helping select which form to use is likely
the practice of law – MO Opinion 20000029
 Reviewing lease to make sure it accurately states parties'
agreement (without evaluating whether to add extra
provisions) – MO Opinion 940126
 Performing basic investigatory services like requesting and
reviewing medical or police records – Mo Opinion 970045
 Taking a sworn statement during an investigation – Mo Opinion
2003002
10

LLP
Who Can Practice Law?
11

LLP
Bar Admissions – Three-Steps
Legal Education or
Substitute
Bar Examination or
Substitute
Character & Fitness
Examination
• ABA Accredited Law
School
• (Foreign/non-
approved law school
plus practice)
•(Foreign/non-
approved law school
plus 24 credits at ABA-
approved school)
• State bar
examination
• Motion/reciprocity (5
of 10 prior years)
•In-house admission
•(Diploma privilege)
• Character and fitness
examination
12

LLP
Temporary Admission – Rule 8.06
 Qualified for admission
 In good standing in another jurisdiction
 Seeking admission through another means
 Lasts up to one year (lost if other attempt at admission fails)
 Need supervising Missouri lawyer
 (Very short, simple form)
13

LLP
Other Means of Admission
 Pro hac vice admission
 Foreign legal consultants – only on the law of the jurisdiction
where the foreign legal consultant is admitted (Rule 9.05)
 Responding to disasters
14

LLP
Reciprocity Issues
 Many states limit practice to lawyers whose home
states allow that state's lawyer to practice
 Example: Missouri Rule 9.02 allows non-resident
lawyers who are Missouri Bar members to practice
only if the lawyer's home state allows non-resident
bar admittees to practice
15

LLP
Where can a lawyer practice?
16

LLP
Practice Permitted
 In state where licensed
 Before federal court (agency) where admitted
 In other jurisdictions where actions are "temporary"
and "permitted"
17

LLP
Federal Courts
 Supreme Court – special rule
 Appellate Courts – admitted to any other state or federal court
 District Courts – quite a lot of variation
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LLP
19

LLP
"Multijurisdictional Practice"
 Old – Simple rule (two principles) and
precedent
 New – Much more complicated rule
20

LLP
Missouri Rule 4-5.5(a)
A lawyer shall not
 practice law in a jurisdiction in violation of
the regulation of the legal profession in that
jurisdiction,
 or assist another in doing so
21

LLP
So, What is UPL? Rule 4-5.5(b)
A lawyer who is not admitted to practice in this
jurisdiction shall not:
(1) except as authorized by this Rule 4 or other law,
establish an office or other systematic and
continuous presence in this jurisdiction for the
practice of law; or
(2) hold out to the public or otherwise represent that
the lawyer is admitted to practice law in this
jurisdiction.
22

LLP
Permitted "Temporary" Practice – Rule 4-5.5(c)
 A lawyer admitted and authorized to practice law in another United States
jurisdiction and not disbarred or suspended from practice in any jurisdiction
may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice
in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before
a tribunal in this or another jurisdiction if the lawyer or a person the
lawyer is assisting is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction if the services arise out of or are reasonably related
to the lawyer's practice in a jurisdiction in which the lawyer is admitted
and authorized to practice law and are not services for which the forum
requires pro hac vice admission;
(4) . . .; or
(5) ….
23

LLP
 A lawyer admitted and authorized to practice law in another United
States jurisdiction and not disbarred or suspended from practice in
any jurisdiction may provide legal services on a temporary basis in
this jurisdiction that:
(1) …
(2) …
(3) …
(4) are provided to the lawyer's employer or its organizational
affiliates and are not services for which the forum requires pro
hac vice admission; or
(5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of
or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted and authorized to
practice law.
24

LLP
Summarizing Rule 4-5.5(c)
 Temporary practice is permitted when
• Local counsel actively participates
• Pro hac vice has been obtained or is anticipated
• It is ADR and arises from jurisdiction where admitted
• Temporary practice by in-house lawyer
• "Arise out of and are reasonably related" to practice in
jurisdiction of license
25

LLP
Unauthorized v. Authorized Practice
Danger
Activities in
jurisdiction
that probably
equal UPL
Safety
Activities in
jurisdiction that
are not UPL
26

LLP
What's on Continuum
Danger – Rule 4-5.5(b)
- Establishing Office
- Systematic &
Continuous Presence
- Hold out as Lawyer in
Jurisdiction
Safety – Rule 4-5.5(c)
- Licensure (in-house,
temporary, etc.)
"Temporary" practice –
Local Counsel
Pro Hac Vice
Arbitration
27

LLP
Active Local Counsel
 A lawyer . . . may provide legal services on a temporary basis in
(1) are undertaken in association with a lawyer who is
admitted to practice in this jurisdiction and who actively
participates in the matter;
28

LLP
Pro Hac Vice Admission
(1) …
(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another
jurisdiction if the lawyer or a person the lawyer is
assisting is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
29

LLP
Pro Hac Vice Rule
 A lawyer seeking to appear pursuant to Rule 9.03 shall pay a
fee equal to the fee paid by lawyers under Rule 6.01(j)(1), with
the fee to be paid for each case in each court or administrative
tribunal in which the lawyer seeks to appear.
 The fee shall be paid to the clerk of this Court, who shall
transfer the fee to The Missouri Bar as provided in Rule 6.07.
30

LLP
ADR Exception
(1) …
(2) …
(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute
resolution proceeding in this or another jurisdiction if the
services arise out of or are reasonably related to the
lawyer's practice in a jurisdiction in which the lawyer is
admitted and authorized to practice law and are not
services for which the forum requires pro hac vice
admission;
31

LLP
 A lawyer admitted and authorized to practice law in another
United States jurisdiction and not disbarred or suspended from
practice in any jurisdiction may provide legal services on a
temporary basis in this jurisdiction that:
(1) …
(2) …
(3) …
(4) are provided to the lawyer's employer or its
organizational affiliates and are not services for which the
forum requires pro hac vice admission; or
(5) ….
In-House Counsel Exception
32

LLP
 A lawyer admitted and authorized to practice law in another United
States jurisdiction and not disbarred or suspended from practice in
any jurisdiction may provide legal services on a temporary basis in
(1) …
(2) …
(3) …
(4) …
(5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of
or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted and authorized to
practice law.
"Arising Out of" Licensed Practice
33

LLP
Case
Deposition
Deposition
34

LLP
"Federal Practice" Exception – Rule 4-5.5 cmt [4]
 Federal law, including but not limited to international treaties,
may require that a lawyer be permitted to practice in this
jurisdiction. Federal law that admits a lawyer to appear in a
federal court or other tribunal does not authorize a lawyer to
establish an office or other systematic and continuous
presence to engage in other aspects of the practice of law in
this jurisdiction.
35

LLP
ABA Model Rule 5.5(d)
 A lawyer admitted in another United States jurisdiction or in a
foreign jurisdiction, and not disbarred or suspended from practice in
any jurisdiction or the equivalent thereof, may provide legal services
through an office or other systematic and continuous presence in
this jurisdiction that :
(1) are provided to the lawyer's employer or its organizational
affiliates; are not services for which the forum requires pro hac
vice admission; and, when performed by a foreign lawyer and
requires advice on the law of this or another jurisdiction or of
the United States, such advice shall be based upon the advice
of a lawyer who is duly licensed and authorized by the
jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other
law or rule to provide in this jurisdiction.
36

LLP
Model Rule 5.5 comment [16]
 To further decrease any risk to the client, when advising on the
domestic law of a United States jurisdiction or on the law of
the United States, the foreign lawyer authorized to practice
under paragraph (d)(1) of this Rule needs to base that advice
on the advice of a lawyer licensed and authorized by the
jurisdiction consult with a U.S. lawyer authorized to provide it
that advice.
37

LLP
Missouri Rule 4-8.5(a)
 A lawyer admitted to practice in this jurisdiction is subject to
the disciplinary authority of this jurisdiction regardless of
where the lawyer's conduct occurs.
 A lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer provides
or offers to provide any legal services in this jurisdiction.
 A lawyer may be subject to the disciplinary authority of both
this jurisdiction and other jurisdictions for the same conduct.
39

LLP
Choice of Ethics Rules --
 In any exercise of the disciplinary authority of this jurisdiction,
the rules of professional conduct to be applied shall be as
follows:
(1) for conduct in connection with a matter pending before a
tribunal, the rules of the jurisdiction in which the tribunal
sits, unless the rules of the tribunal provide otherwise;
and
(2) for any other conduct, the rules of the jurisdiction in
which the lawyer's conduct occurred or, if the
predominant effect of the conduct is in a different
jurisdiction, the rules of that jurisdiction.
41

LLP
"Safe Harbour" – Rule 4-8.5(a)
 A lawyer shall not be subject to discipline if the lawyer's
conduct conforms to the rules of a jurisdiction in which the
lawyer reasonably believes the predominant effect of the
lawyer's conduct will occur.
42

LLP
Lawyer-Client Agreements – Model Rule
8.5 comment (Ethics 20/20)
 [5] When a lawyer's conduct involves significant contacts with
more than one jurisdiction, it may not be clear whether the
predominant effect of the lawyer's conduct will occur in a
jurisdiction other than the one in which the conduct occurred.
. . . With respect to conflicts of interest, in determining a
lawyer's reasonable belief under paragraph (b)(2), a written
agreement between the lawyer and client that reasonably
specifies a particular jurisdiction as within the scope of that
paragraph may be considered if the agreement was obtained
with the client's informed consent confirmed in the
agreement.
43

LLP
Supervisory Responsibility – Rule 4-5.1
(a) A partner in a law firm, and a lawyer who individually or
together with other lawyers possesses comparable
managerial authority in a law firm, shall make reasonable
efforts to ensure that the firm has in effect measures giving
reasonable assurance that all lawyers in the firm conform to
the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another
lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.
45

LLP
"Vicarious" Liability – Rule 4-5.1(c)
(a) ….
(b) ….
(c) A lawyer shall be responsible for another lawyer's violation of the
Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial
authority in the law firm in which the other lawyer practices,
or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial
action.
46

LLP
Scenario 1
 Lawyer admitted only in Missouri
 Lawyer moves to office another state (say, Illinois)
 Lawyer begins to practice law from an office in that
other state
 Is this UPL?
• What if Lawyer only works on cases pending in
Missouri?
• What if Lawyer only works for Company XYZ as in-
house counsel?
48

LLP
Scenario 2
 In-House Counsel (IHC) is licensed only in Missouri
 While located in Missouri, IHC constantly
negotiates contracts with Company's employees in
another state (Illinois)
 IHC also handles all EEOC/State employment
investigations
 IHC will retain local counsel if litigation or a
regulatory proceeding results
49

LLP
Scenario 3
 Lawyer licensed only in Missouri
 Client in Other State (Arkansas) calls and needs an
answer filed immediately in lawsuit pending in Other
State (Arkansas)
 Lawyer files answer in Other State along with request
for pro hac vice admission
50

LLP
Scenario 4
 Lawyer is licensed only in Missouri
 Lawyer moves to Colorado to do non-legal work for
Corporate Employer
 Friend in Colorado asks Lawyer to review a mineral
lease
Based on Office of Lawyer Regulation v. Bolte (Wis.
2005)
51

LLP
Scenario 5
 Lawyer licensed in Missouri is litigating case pending
in Missouri
 Lawyer needs to depose or interview witness in Other
State (Delaware)
 Lawyer licensed in Other State (Delaware) represents
witness
 Who needs to worry about UPL?
 Whose rules apply?
52

LLP
Scenario 6
 Lawyer moves to Michigan and opens office only to
practice federal bankruptcy litigation
 Key cases – Sperry v. Florida Bar (US 1963)
 In re Desilets, 247 B.R. 660 (Bankr. W.D. Mich 2000),
aff'd, Rittenhouse v. Delta Home Improvement, Inc.,
255 B.R. 294 (W.D. Mich. 2000)
53

LLP
Scenario 7
 In-House Counsel is licensed only in Missouri
 Company has case pending in Other State
 In-House Counsel works on case including
investigation, meeting to discuss settlement, and
taking depositions
54

LLP
Scenario 8
 Other State Firm (OSF) has litigation in Missouri
 OSF has no lawyers licensed in Missouri, so OSF hires local
counsel in Missouri (just to sign and file pleadings)
 OSF Firm prepares brief that misstates governing law
 Missouri lawyer signs and files brief
 Has anyone engaged in UPL?
 Who is responsible for misstatement of the law?
 Based on In re Wilkins (Ind. 2002)
55

LLP
Scenario 9
 Missouri Firm has no attorneys licensed in Other State
 Client in Other State hires Missouri Firm to conduct
internal investigation in Other State
 Is this UPL in Other State?
 Based on Decker, Hallman, Barber & Briggs matter
56

LLP
Scenario 10
 Lawyer receives case likely to be filed in Other State
for Missouri client
 Lawyer travels to Other State many times to meet
with client and investigate claim
 Lawyer settles matter before filing suit in Missouri
 Was this UPL?
57

LLP
Virginia New UPL Law
(C) Definition of "Non-lawyer." – the term "non-lawyer" means any person, firm,
association or corporation not duly licensed or authorized to practice law in the
Commonwealth of Virginia. However, any lawyer not licensed to practice law in
Virginia, but licensed in any other state or territory of the United States or the
District of Columbia, or a foreign nation, who provides legal advice or services to
clients in Virginia, shall not be subject to these Unauthorized Practice rules but shall
be subject to the laws, rules and regulations of the jurisdiction(s) in which he/she is
licensed to practice, as well as otherwise applicable Virginia Law including the
Virginia Rules of Professional Conduct.
(D) The Unauthorized Practice rules which follow represent a nonexclusive list of
specific types of practice which would violate these rules.
January 11, 2010
59

LLP
Other States on UPL
 District of Columbia Court of Appeals Rule 49(c)(6) expressly
exempts "[p]roviding legal advice only to one's regular
employer, where the employer does not reasonably expect
that it is receiving advice from a person authorized to practice
law in the District of Columbia" from conduct that constitutes
the unauthorized practice of law.
 North Carolina generally provides under State v. Pledger (NC
1962) and its progeny that a corporate employee is not
practicing law as long as (a) the corporate employer has a
primary interest in the matter and (b) the work does not
involve appearing in court, other than small claims court.
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LLP
Possible Changes
 GATS – General Agreement on Trade in Services –
impact on licensure?
 Federalization of Bar Admissions and Regulation
• Securities lawyers
• Gramm-Leech Bliley and FTC Red Flags
61

LLP
Litigation over MJP
 NAAMJP v. Simandle (D.N.J. June 9, 2014) – challenging NJ federal court local
rule for admitting only NJ-admitted attorneys to NJ federal court
• Exceptions to NJ Rule – resident patent attorneys, criminal defense
attorneys
 NAAMJP v. Roberts (D.D.C. 2013) – challenging DC federal local court rule for
admitting only those licensed in states that give reciprocity to DC lawyers to DC
federal court
• 25 of 94 courts (15 states)
 NAAMJP v. Castille (E.D. Pa. 2013) -- challenging PA federal local court rule for
admitting only those licensed in states that give reciprocity to PA lawyers to PA
federal court
• 38 states plus DC
62

LLP
Thank You
 Michael Downey
 Armstrong Teasdale LLP
 314-342-8072 (extension 7032)
 Mdowney@armstrongteasdale.com
63

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