NAVIGATING THE SAFE HARBORS OF MULTIJURISDICTIONAL PRACTICE

• Jurisdiction: United States

Due Diligence in Oil & Gas and Mining Transactions
(Sept 2018)
CHAPTER 7B
NAVIGATING THE SAFE HARBORS OF MULTIJURISDICTIONAL PRACTICE
Matthew K. Corbin ^*
AON Risk Solutions
Overland Park, KS

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MATTHEW K. CORBIN is a Senior Vice President with Aon's Professional Services Group. As a member of Aon's loss prevention team, Matt consults with Aon's 300+ law firm clients on a wide range of professional responsibility and liability issues. Before joining Aon in 2013, Matt was a partner with Lathrop & Gage LLP in Kansas City, Missouri, and Overland Park, Kansas. He was a business trial and appellate lawyer handling commercial, business tort, employment, construction, insurance, professional liability, and regulatory matters. Before joining the firm, he clerked for the Hon. Mary Beck Briscoe of the U.S. Court of Appeals for the Tenth Circuit. Matt began his career as a law clerk to the late Hon. G. Thomas Van Bebber in the U.S. District Court for the District of Kansas. Matt earned his J.D. from the University of Kansas, where he was Note and Comment Editor of the Kansas Law Review, was a member of the Order of the Coif, and won the C.C. Stewart Award in Law. Matt also earned his B.A. from the University of Kansas.

I. Introduction

The practice of law is increasingly national in scope. With the expansion of interstate commerce, speed of electronic communications, and ease of mobility, lawyers routinely reach--both physically and virtually--outside of their home jurisdictions to handle transactional work and litigation for their clients.

Recognizing the emergence of multijurisdictional practice, the American Bar Association amended Model Rule 5.5 in 2002 to allow lawyers to engage in cross-border practice in jurisdictions in which they are not licensed to practice law.¹ Under Model Rule 5.5's central framework, a lawyer cannot (1) practice law in a jurisdiction where doing so violates the rules governing the unauthorized practice of law (UPL) in that jurisdiction, or assist another person in performing an activity that constitutes UPL; (2) establish an office or other systematic and continuous presence in a state in which she is not licensed; or (3) represent or hold herself out to the public as admitted to practice law in a state in which she is not licensed.²

At the same time, a lawyer may have a temporary presence in a jurisdiction where she is not licensed if she (1) associates with local counsel; (2) perform legal services which are reasonably related to pending or potential litigation in which she is, or reasonably expects to be, authorized to participate; (3) furnishes legal services which are reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution (ADR) matter arising out of her home state practice; or (4) provides legal services which arise out of, or are reasonably related to, her home state practice.³ In addition, a lawyer may maintain either a temporary or permanent presence in a jurisdiction in which she is not admitted to practice if a specific rule, regulation, or other law authorizes her legal services.⁴

At last count, 46 states and the District of Columbia permit cross-border practice along the lines suggested in Model Rule 5.5. Hawaii, Mississippi, Montana, and Texas are the holdouts. And while most jurisdictions have a rule patterned after Model Rule 5.5,⁵ an overall

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lack of uniformity from state to state persists. The end result is notable uncertainty about the permissible scope of multijurisdictional practice. This is particularly alarming because the potential consequences of UPL violations are significant.

Beyond the unfortunate bruising of client relationships and hard-earned reputations, lawyers on the wrong side of UPL regulations may face professional discipline in both the "home and away" jurisdictions; criminal liability--UPL is a misdemeanor in most states, but a felony in a few states such as Florida and New York; fee disgorgement; disqualification; sanctions; nullification of pleadings; void judgments; denial of admission to practice in other states; and exposure to malpractice lawsuits in remote jurisdictions through the requisite minimum contacts.

Compounding matters, it is difficult to predict when lawyers' interstate practices will be tested and by whom. UPL challenges, though, commonly arise from one of the following scenarios: a lawyer's opposing counsel seizes on a perceived opportunity to gain leverage; a client criticizes the quality of the lawyer's performance, often triggered by a fee dispute; a perceptive judge raises the issue sua sponte; or a state board of law examiners scrutinizes the legal representations and marketing activities set forth in an out-of-state lawyer's application for admission.

Long story short, lawyers must understand how the jurisdictions where they have a physical or virtual presence define what is and what is not acceptable conduct by out-of-state practitioners. With that goal in mind, this Article offers a roadmap for navigating the safe harbors of multijurisdictional practice under Model Rule 5.5. Part II attempts to shine some light on the definition of a lawyer's "temporary" presence--in contrast to a "systematic and continuous" presence--in a non-admitted jurisdiction, and outlines the parameters of the four temporary practice safe harbors. Part III then addresses the authorized by law safe harbor, which may shelter lawyers with even an established office or other systematic and continuous presence in an unlicensed jurisdiction. Parts IV and V conclude with recommendations for lawyers and law firms to minimize the risk of UPL violations.

II. The Temporary Practice Safe Harbors

There are four temporary practice safe harbors under Model Rule 5.5: (1) association with local counsel; (2) legal services which are reasonably related to pending or potential litigation in which a lawyer is, or reasonably expects to be, authorized to participate; (3) legal services which are reasonably related to a pending or potential arbitration, mediation, or other ADR matter arising out of a lawyer's home state practice; and (4) legal services which arise out

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of, or are reasonably related to, a lawyer's home state practice. These exceptions apply only if the lawyer's presence in a non-admitted jurisdiction is considered temporary as opposed to regular or permanent.

A. Defining Temporary Presence

There is no single test or standard governing whether a lawyer's legal services are provided on a "temporary basis."⁶ Courts and state ethics opinions typically express a lawyer's temporary presence in another jurisdiction as "incidental," "limited," "isolated," "attenuated," or "occasional," while describing a lawyer's systematic and continuous presence as "regular," "repetitive," "frequent," "substantial," or "permanent."⁷

Legal authorities addressing multijurisdictional practice further agree that a lawyer's lack of physical presence in an unlicensed jurisdiction is not determinative.⁸ Rather, a lawyer's virtual presence through telephone, email, and advertising is sufficient to trigger UPL concerns.⁹

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At least for litigated matters, concrete guidance is sometimes available through state and local rules imposing a maximum number of pro hac vice appearances in a particular timeframe.¹⁰ For instance, in 2017, the Arkansas Supreme Court adopted a rule requiring courts to deny an out-of-state lawyer's pro hac vice motion if the lawyer already entered a pro hac vice appearance in three cases within the preceding 12 months.¹¹ Similarly, Mississippi limits the number of appearances in state courts and administrative agencies to five in a one-year period.¹² Alabama, the District of Columbia, Florida, Michigan, Montana, Nevada, New Mexico, Ohio, Rhode Island, and Virginia also limit the number of pro hac vice admissions in a defined period.

Additional parameters for determining whether a lawyer's presence in a non-admitted jurisdiction is temporary are unfortunately sparse. At one extreme, a lawyer's occasional visits to another state for a single client in one matter--even over an extended period of time--should be considered temporary legal services.¹³

At the other end of the spectrum, it is reasonable to characterize lawyers who handle multiple matters or represent multiple clients over several years in an unlicensed jurisdiction as maintaining a regular presence.¹⁴

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The boundary between temporary and regular legal services will undoubtedly become clearer over time as courts, state ethics committees, and disciplinary authorities continue to interpret Model Rule 5.5. For now, there is ample room for subjective interpretation.¹⁵

Accordingly, lawyers should periodically pause to consider whether their law practice and client base regularly extends into jurisdictions where they are not licensed. Factors that may be relevant to this determination include the volume of communications directed to clients and potential clients in the non-admitted jurisdiction; the number of clients in the non-admitted jurisdiction; the proportion of the lawyer's clients in the non-admitted jurisdiction; the duration and frequency of representing clients in the non-admitted jurisdiction; the extent to which the lawyer's services have their predominant effect in the non-admitted jurisdiction; and whether the purpose of the lawyer's communications is to obtain new clients in the non-admitted jurisdiction.

B. Detailing the Four Safe Harbors

1. Association with Local Counsel

The first temporary practice safe harbor permits a lawyer to practice law in a non-admitted jurisdiction if the legal services are undertaken in association with a lawyer who is licensed in that jurisdiction.¹⁶ The exception only applies, however, if local counsel actively participates in the representation and shares responsibility for the matter.¹⁷ This condition...