On the Proper State of Things: Multijurisdictional Practice for the Kansas Practitioner
| Publication year | 2005 |
| Pages | 26-33 |
| Citation | Vol. 74 No. 2 Pg. 26-33 |
74 J. Kan. Bar Assn. 2, 20-23, 26-33 (2005). On the Proper State of Things: Multijurisdictional Practice for the Kansas Practitioner
74 J. Kan. Bar Assn. 2, 20-23, 26-33 (2005)
Clients of all sizes and types increasingly conduct their businesses and personal affairs without regard to state lines. When they hire a lawyer, they understandably would like to hire someone who can handle their problem or issue in its entirety, not someone who can only handle that problem or issue up to a neighboring state line, where it must then be handed off to another lawyer or firm who will charge them all over again for dealing with it. Moreover, just as the mobility and jurisdictional reach of client matters have increased exponentially, so has the complexity and rapid development of law in particular subject matter or industry-driven areas, with resulting de facto specialization of many lawyers in response to client needs. A client may no longer look for a "good lawyer" to handle their matter - the client may look for the best identifiable "construction lawyer," "class action lawyer," "personal injury lawyer," "public law lawyer," or "domestic relations lawyer," without regard to whether that lawyer is on one side or the other of any state line. Larger clients may have national or regional counsel charged with handling particular transactional or litigation matters in various, or more likely, multiple states.
Against this backdrop of client economics and practice realities, lawyers work within one of the most highly developed, but also highly fragmented, professional regulatory frameworks. The Kansas lawyer and law firm handling a matter touching upon other states must determine whether what they are doing runs afoul of the law in those other states. Lawyers from other states also have the same type of problem when their matters touch upon Kansas. In addition, Kansas lawyers must be wary of assisting lawyers from other states to engage in practice that violates Kansas law. Given these realities, is there well-developed guidance available for Kansas lawyers looking beyond state borders and other lawyers looking into Kansas? In a word, no.
This article will highlight some of the multijurisdictional practice issues for both litigation and transactional lawyers and will discuss at least the general authorities and rules available or applicable to respond to those issues. But the practitioner who is philosophically allergic to gray areas is advised to reinsert his or her head into the nearest body of sand - there is precious little clarity to report. The article will conclude with a suggestion for removal of at least some of the uncertainty.
I. The Context: Some Example Multijurisdictional Practice Problems
The following scenarios are examples of relatively common fact situations that implicate multijurisdictional practice considerations. Consider how many of them you've already encountered; possible answers will be discussed in section III.
Litigation practice
1. Kansas lawyer has a Kansas-based client that asks her to analyze its position in a dispute about an acquisition of Kansas assets from another company located out of state, under a contract providing for the application of another state's law. May Kansas lawyer advise client about the validity of its legal position under the other state's law?
2. Kansas lawyer has a Kansas-based client that has a dispute with a company from another state. May Kansas lawyer send demand letters and statements of client's position to the adversary in the other state?
3. Kansas lawyer's Kansas-based client has a dispute with a company from another state. A negotiation meeting is arranged between client and its adversary and their lawyers at the office of the adversary. May Kansas lawyer attend to represent client without local counsel?
4. Kansas lawyer's Kansas-based client is sued in another jurisdiction where it has an office. May Kansas lawyer go into that jurisdiction to perform some preliminary investigation, while local counsel is being arranged and before admission pro hac vice in the other jurisdiction?
5. Kansas lawyer represents client in a matter in a Kansas court. It is discovered that a third-party witness to be deposed resides in another state and that her deposition can only be taken in that state. May Kansas lawyer attend the deposition without local counsel?
6. Kansas lawyer represents client in a dispute with another entity. Pursuant to contract the matter is to be arbitrated. The parties agree upon an arbitrator and that the arbitration will be conducted at a neutral site where the arbitrator is located, in a state having nothing to do with the underlying dispute. May Kansas lawyer participate in the arbitration without local counsel?
7. Lawyer is a member of a firm with offices in Kansas and a neighboring state. She is admitted to the federal court bar of the neighboring state, but is not licensed in the state courts of that state. If lawyer limits her practice to federal employment law claims, may lawyer maintain an office in the neighboring state?
8. Law firm hires an experienced lawyer from another state to lead a new energy litigation practice group. The lawyer moves to Kansas in February, unable to be admitted to the Kansas bar upon examination until September. Until he is admitted, may the new lawyer practice as a lawyer from the firm's office in Kansas, using other lawyers of the firm as local counsel?
Transactional practice
1. Kansas lawyer is asked for an opinion letter about the enforceability of a contract provision under the law of another state. May she provide that opinion without local counsel from that other state?
2. Kansas lawyer has a Kansas-based client that asks her to represent it in negotiating an acquisition of Kansas assets from another company located out of state. May Kansas lawyer communicate by letter, phone, and e-mail with the other company's out-of-state counsel in negotiating the transaction?
3. Kansas lawyer's Kansas-based client asks her to represent it in negotiating an acquisition of Kansas assets from another company located out of state. May Kansas lawyer attend negotiating sessions and closing in another state?
4. Kansas lawyer has an existing client based in another state that asks him to represent it in negotiating a sale of a group of retail stores located in 25 states, including Kansas, because of Kansas lawyer's particular expertise in that type of transaction. May Kansas lawyer communicate by letter, phone, and e-mail with the other company's out-of-state counsel in negotiating the transaction?
5. May Kansas lawyer representing the client in problem four attend negotiating sessions and a closing in another state?
6. Kansas lawyer and his Kansas-based client are in an airport on the East Coast awaiting a connecting flight. Client asks for advice about a matter of Kansas law. May lawyer answer or must he wait until they are back on Kansas soil?
7. Law firm has an office in a neighboring state. In connection with a large transaction for a client, may four of its transactional lawyers licensed in Kansas report to the neighboring state office for a month to do due diligence?
8. Law firm maintains a Web site, accessible to potential clients in all 50 states. May it represent that it has expertise in various types of transactional matters, even though it does not have lawyers licensed in other states?
II. The Rules and Recent Developments
A. Existing Model Rule 5.5
Model Rule 5.5, as currently adopted in Kansas,(fn1) is as elegant in its circular simplicity as it is almost wholly lacking in guidance for the practitioner. In effect, it amounts to nothing more than an admonition to follow the law of any applicable jurisdiction without suggestion of what that might entail, i.e., what conduct is actually proscribed:2
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
In the framework of this rule, what constitutes the practice of law within any given jurisdiction? The rule itself is silent. The Comment to the rule makes that silence official, if unhelpful:
The definition of the practice of law is established by law and varies from one jurisdiction to another.
Thus, under the existing rule, Kansas practitioners concerned about whether activities in another state in which they are not licensed would constitute the unauthorized practice of law must (perhaps ironically, if the answer turns out to restrict their activities) analyze the law of that other state. Of course, unless all states had a common rule providing specific guidance, that would be the case in any event. But the rule also provides no guidance to practitioners from other states attempting to avoid difficulty with Kansas regulation of the practice of law. Moreover, Rule 5.5(b) creates at least the possibility that a Kansas practitioner could be held responsible for "assist[ing]" a lawyer from another state in unauthorized practice within the state, without any guidance in the rule about the conduct that might be the subject of such responsibility.
B. What constitutes the practice of law in Kansas?
In Kansas, as in most states, the law concerning what constitutes the practice of law has developed piecemeal in judicial decisions - and usually in contexts other than multijurisdictional practice, such as disciplinary or criminal proceedings about the actions of suspended or disbarred attorneys;3 proceedings concerning nonlawyers alleged to be engaging in the practice of law;4...
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