CHAPTER 5 - 5-5 UNAUTHORIZED PRACTICE OF LAW

• Jurisdiction: United States

5-5 Unauthorized Practice of Law

5-5:1 Unauthorized Practice Generally

A lawyer may not practice in a jurisdiction here she is not licensed.⁶¹ A lawyer may not assist a person not admitted as a lawyer in Connecticut to practice law.⁶² A lawyer may assist a self-represented party who wishes to appear pro se.⁶³ The unauthorized practice of law (UPL) is generally dealt with in Sections 6-6 and 7-8:1 of this book. However, it has important implications related to law firm management.

When the first formal statement of ethical standards for lawyers, the Alabama Code, was adopted in 1887 the practice of law by individual lawyers was limited to fairly discrete localities, defined as much by the realities of communication and travel as by regional or state jurisdictional boundaries. While it might have been legal for a lawyer admitted in a state to practice in any part hereof, for all practical purposes most lawyers limited their practices to geographic limitations they could practically reach by horseback or train. Some vestiges of that reality remained in our court rules until modern times, including the "out of county" rule which provided that it was not an excuse to being called for trial in a court of one county that the lawyer was on trial before a court in another county.

Contrast this reality with the fact that lawyers (and legal business) today routinely move around regions or nationally as they follow the needs of clients who increasingly operate on a national or international basis. It is not uncommon for a lawyer in one state to communicate by phone or computer with lawyers or clients in other states about matters which may involve the law of yet different states or countries. It was this mobility which led to the signal case known as Birbrower.⁶⁴

In Birbrower, a New York law firm had represented a California client with regard to a claim against another California entity. Some of the work was done by phone and fax from the firm's New York office. Other work, including arbitration of the claim, was done in California. When sued for malpractice by their client, the Birbrower firm counterclaimed for unpaid legal fees. On appeal, the California Court of Appeals, though noting that it was "aware of the interstate nature of modern law practice and mindful of the reality that large firms often conduct activities and serve clients in several states" nevertheless concluded that to the extent that Birbrower practiced law in California without a license, it engaged in the unauthorized practice of law and would be denied the right to use California courts to recover for those services.⁶⁵ Connecticut courts had previously reached similar results.⁶⁶ But Birbrower was especially attention-getting because the amount in dispute was $1 million, and the conduct complained of, arbitration, had been considered by many as to be an exception to the unauthorized practice limitations.

Birbrower sent a seismic shock wage through the bar. While lawyers may have been aware of their ethical jeopardy for the unauthorized practice of law, absent any complaint it was unlikely that bar regulators would pursue neither an investigation nor a prosecution of lawyers who happened across state lines to follow client business. Now they were faced with the reality that in doing so they might be putting their ability to be paid for this work at risk. Birbrower led to the adoption of changes to Model Rule 5.5 which allowed for what became to be known as "multijurisdictional practice" or "MJP." Connecticut has adopted a version of this rule, found in Rule 5.5 (c) through (f).⁶⁷

Subsequent to Birbrower, the California legislature amended its business and professional code to exempt arbitration from the definition of the practice of law, thereby legislatively overruling Birbrower in part.⁶⁸ Birbrower has been criticized by many courts, and the adoption of some version of Rule 5.5 by most jurisdictions has made its import moot in some respects. The modern approach may have been best articulated by the 9th Circuit in a matter called Winterrowd.⁶⁹ In Winterrowd, employees sought attorneys' fees for successful claims they had made against their former employer. The legal services had been provided by an Oregon lawyer. In reversing the district court's denial of the fees based on Birbrower, the 9th Circuit noted that as early as 1966, Judge Friendly had noted that lawyers operate in an "age of increased specialization and high mobility of the bar"⁷⁰ and that

(i)n 1966, there were no personal computers, no Internet, no Blackberries, no teleconferencing, no emails, and the only person who had a two-way wrist radio was cartoon character Dick Tracy. Today, largely because of the benefits of modern technology, hundreds of U.S.-based law firms are composed of many hundreds, or even thousands, of lawyers and support personnel contemporaneously doing business in many states and throughout the world. Lawyers throughout the United States regularly participate in teleconferences and group email sessions with other lawyers in other states, and lawyers and paralegals from one or more firms participate in massive discovery projects arising out of a single case concerning papers and data located in several states. In many such instances, only a small fraction of the lawyers involved in a case are members of the bar of the state where the presiding court sits. Current law does not compel us to be judicial Luddites, and we may properly accommodate many of the realities of modern law practice, while still securing to federal courts the ability to control and discipline those who practice before them.⁷¹

The 9th Circuit, citing Winterrowd, upheld...