Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law
(a) 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.
(b) 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.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that provide legal services in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
COMMENT
. . .
[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b)(1) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. For example, a lawyer may direct electronic or other forms of communications to potential clients in this jurisdiction and consequently establish a substantial practice representing clients in this jurisdiction, but without a physical presence here. At some point, such a virtual presence in this jurisdiction may become systematic and continuous within the meaning of Rule 5.5(b)(1). Moreover, a lawyer violates paragraph (b)(2) if the lawyer Such a lawyer must not is not admitted to practice in this jurisdiction and holds out to the public or otherwise represents that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).
. . .
[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent. See, e.g., The ABA Model Rule on Practice Pending Admission.
The Commission's Explanation for the Proposal
The Commission recommends that Rule 5.5(d) be amended to clarify the purpose of the paragraph. In particular, Rule 5.5(d) was intended (and has been interpreted) to permit a lawyer, under limited circumstances, to establish an office or other systematic and continuous presence for the practice of law in a jurisdiction where the lawyer is not otherwise admitted to practice. Except for those limited circumstances, an out-of-state lawyer must become admitted to practice law generally in the jurisdiction in order to establish an office or engage in any other systematic or continuous practice of law there. The Commission concluded that the prefatory language in Rule 5.5(d) is not sufficiently clear in this regard and that the prefatory language should state explicitly that paragraph (d) is intended to explain when a lawyer may “provide legal services through an office or other systematic and continuous presence” in the jurisdiction.
Proposed Amendment to Comment [4] to Model Rule 5.5
Rule 5.5(b)(1) provides that, unless a lawyer is authorized to practice in a jurisdiction under Rule 5.5(d), a lawyer must seek admission in that jurisdiction when the lawyer has established “an office or other systematic and continuous presence” there. It is not always clear, however, when a lawyer has established such a presence, particularly given the numerous ways in which lawyers now deliver legal services in other jurisdictions without being physically present there, such as through the use of virtual law offices. Thus, the Commission concluded that lawyers would benefit from more guidance as to when their practices involve a “systematic and continuous” presence in another jurisdiction.
The Commission concluded that Comment [4] already offers some guidance in this regard. It provides that a lawyer may have a “systematic and continuous” presence in a jurisdiction even without establishing a physical presence there. The Commission determined that additional language would give lawyers more clarity as to when a non-physical presence might be considered “systematic and continuous.” In particular, the Commission is proposing an amendment to Comment [4] that would specify, by way of example, that a lawyer may have a systematic and continuous presence in a jurisdiction if the lawyer directs electronic or other forms of advertising to clients in the jurisdiction with the intent of representing those clients and establishing a substantial practice in the jurisdiction. The Commission wanted to make clear that, at some point, such a virtual presence can give rise to a systematic and continuous presence within the meaning of Rule 5.5(b)(1).
This amendment does not create any new obligations and is not intended to affect the scope of Comment [4], which already makes clear that a lawyer can establish a systematic and continuous presence in a jurisdiction even if the lawyer is “not physically present” there. Moreover, the purpose of this amendment is not to discourage virtual law offices. To the contrary, the Commission found that lawyers who have such practices can offer legal services efficiently and effectively and can improve access to justice.
Rather, the amendment is designed to serve two purposes. First, the amendment makes clear that these new forms of practice are subject to the restrictions of Rule 5.5(b), just like more traditional forms of law practices. And second, the amendment is intended to offer more guidance to lawyers who engage in new forms of law practice as to when the Rule might be triggered. The Commission concluded that this clarification enables lawyers, including lawyers who practice virtually, to provide legal services to clients in other jurisdictions on an occasional basis as long as doing so is consistent with Rule 5.5(c), while at the same time prohibiting those lawyers from establishing a more systematic and continuous relationship with a jurisdiction unless they are admitted to practice or are otherwise authorized to practice in that jurisdiction.
The Commission recognizes that the proposed new Comment does not clearly define the line between a permissible temporary virtual practice in a jurisdiction and in an impermissible systematic and continuous presence. The Commission concluded that precision in this area is not possible. The Commission, however, believes that the new language will give lawyers more guidance than the Comment currently provides.
In sum, lawyers who practice virtually must comply with the same restrictions as lawyers who have more traditional law offices, and the Commission’s proposal is intended to make this point more explicitly while offering lawyers more guidance as to the Rule’s application to these newer forms of law practice.
I am still really confused about how UPL works in the following situations:
(1) a lawyer works from home in Maryland (where she is not licensed) and represents clients in Washington D.C. (where she is licensed), does not have a home address on a business card or stationary and uses a home address (or PO Box) in Maryland for limited mailings or
(2) a lawyer works from home in Maryland (where she is not licensed), has an entirely virtual law practice representing clients in Texas matters (where she is licensed) and does not publicize a physical mailing address
In these scenarios, is the lawyer committing UPL by doing legal work in Maryland in other jurisdictions when she is not licensed in Maryland?
I've used the Maryland example specifically because I live here and see this kind of question come up frequently. The common scenario is where a lawyer who lives in MD and works for DC firm is laid off or has a child and decides to open a practice and work from home but is not licensed in Maryland and either is too junior to take the MD practitioner's exam or simply does not want to incur the expense of the exam and admission fees associated with gaining admission.
Rule 5.5. says that a lawyer must be licensed if he has an "office or systematic, continuous presence" in a jurisdiction. But that doesn't offer any guidance to home-based lawyers in the above scenarios. If the Maryland lawyer works from home & speaks with clients by phone from home, but meets clients at coffee shops or courthouses in DC, keeps all of her files "in the cloud" and does not use her home address on business cards or website, but only for limited court correspondence, would her home be considered her office for purposes of Rule 5.5? If the lawyer does not tell anyone that she works from home, it would be hard to say that she has a systematic, continuous presence in Maryland. But would her home be deemed to be her office because it is where she spends her time - or is it possible to have no office? The problem is that the concpet of the office has changed, and it is possible to physically work from home, even though that is not necessarily one's office. If that is the case, it would be nice if the rules could come out and say that.
Posted by: Carolyn Elefant | February 28, 2012 at 07:32 PM
The proposed change appears clearly contrary to Sperry v. Florida (U.S., 1963). In particular, it appears to permit services to be supplied only through an office or only through other systematic and continuous presence within the jurisdiction. No Federal law or rule imposes such a restriction on registered patent attorneys. Since Federal law makes patent attorneys subject to a comprehensive code of professional conduct by the US Patent and Trademark Office, and since there is no other compelling state interest which would be met by the proposed change, the proposed change clearly appears preempted.
Posted by: Cass L. Singer | March 02, 2012 at 09:01 PM