Office of Bar Counsel, 0221 WYBJ, Vol. 43 No. 1. 12

AuthorMark W. Gifford Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming
PositionVol. 43 1 Pg. 12

Office of Bar Counsel

Vol. 43 No. 1 Pg. 12

Wyoming Bar Journal

February, 2021

Mark W. Gifford Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming

Unauthorized Practice of Law by Lawyers: Rule 5.5, W.R.Prof.Cond.

As multijurisdictional practice becomes commonplace and jurisdictional lines blur, there are corresponding challenges in applying rules of professional conduct, often grounded in the way the practice of law has been conducted in the past, to a new world order in which it is possible to practice law in Wyoming from such remote locations as Chile, as a member of a Wyoming firm did in recent years. Technological advances necessitated by the pandemic, including innovations such as video meetings and remote notaries, and a trend away from brick-and-mortar office practice, occasion a reassessment of how the practice of law is defined and, concomitantly, what constitutes the unauthorized practice of law (UPL) by lawyers.

Rule 5.5, W.R.Prof.Cond., is nearly identical to the ABA Model Rule and opens with the admonition, “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.” Simple enough. From that point on, the application of Rule 5.5 to new realities of the post-pandemic practice of law becomes somewhat problematic.

Rule 5.5(b) provides:

A lawyer who is not admitted to practice in this jurisdiction shall not: 1. except as authorized by these Rules 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.

Recall our colleague, mentioned above, who moved his family to Chile for a year to immerse themselves in a different culture. While there, he continued his practice of Wyoming law. Did he establish “a systematic and continuous presence” in Chile for the practice of law? It would be hard to argue he did not. If so—and were Chile’s definition of unauthorized practice of law by a lawyer to mirror Wyoming’s—did he engage in the unauthorized practice of law in Chile? To suggest he did seems nonsensical, but there is the matter of the pesky language of the rule.

The Ohio Supreme Court faced this issue in In re Egan, 90 N.E.3d. 912 (Ohio 2017). Shannon O’Connell Egan was a Kentucky lawyer who relocated to Ohio where she accepted a position with an Ohio law firm. She practiced with the Ohio firm from 2002 to 2013, although her practice was limited to representing Kentucky clients. Egan eventually applied for admission without examination in Ohio. When a question arose...

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