South Carolina Lawyer
SC Lawyer, May 2006, #3.
South Carolina LawyerMay 2006Multi-jurisdictional practiceBy John FreemanThe rising usage of ADR procedures, principally in the form of arbitrations and mediations, has created a new set of ethical conundrums. One group deals with unauthorized practice problems apt to crop up when an arbitration or mediation's locale is set for a neighboring state in which you are not admitted. Consider, for example, the facts in the following hypothetical.
Your client, a Richland County resident, plainly had been defrauded by an out-of-state aluminum siding installation company based in Missouri. Only after you sued in local circuit court did you become aware that the service contract signed by your client demanded that disputes be resolved purely by arbitration in Charlotte. The defendant has moved to compel arbitration, and your research indicates the motion is likely to be granted. You are not admitted in North Carolina and are worried about what must be done for you to continue representing your client in the Charlotte arbitration you foresee as inevitable. Must you refer the case out to a North Carolina lawyer or at least associate North Carolina co-counsel? There is reason for concern.
In Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119, 949 P.2d 1, 70 Cal.Rptr.2d 304 (Ct. App. Cal. 1998), a lawyer from a New York firm who was unlicensed to practice law in California was barred from accepting attorneys fees for having committed the unauthorized practice of law by participating in an arbitration in California. Likewise, in Florida Bar v. Rapoport, 845 So.2d 874 (Ct. App. Fla. 2003), an attorney admitted in Washington, DC, but not licensed in Florida, was found to have engaged in the unauthorized practice of law by representing Florida citizens in arbitrations in the Sunshine State.
On the other hand, a number of cases, including Colmar, Ltd. v. Fremantlemedia North America, Inc., 344 I11.App.3d 977, 801 N.E.2d 1017, 280 Ill.Dec.72 (Ill App. 2003), and Williamson v. Quinn Construction Corp., 537 F. Supp. 613 (S.D.N.Y.1982), have ruled that an out-of-state attorney's representation of a party in a commercial arbitration did not constitute the unauthorized practice of law.
So what is our hypothetical lawyer to do...