Imagine that Laura Lawyer is licensed only in Massachusetts and operates a virtual law office from there. She writes wills for clients in Massachusetts and, occasionally, New Hampshire. Lately, the flow of clients from New Hampshire has increased, and Laura is writing an increasing number of wills for New Hampshire citizens. Assume that Laura never visits New Hampshire and performs all of her work in Massachusetts over the Internet.
Here are a couple of questions. First, assuming that the wills are governed by New Hampshire law, does Laura violate Rule 5.5 by writing any wills at all for these New Hampshire citizens? In other words, are these occasional representations permitted by Rule 5.5(c)(4)? (See Comments [13] and [14].)
Second, assuming the occasional representations are permitted, or the hypothetical is altered to make it clearer that the representations fall within Rule 5.5(c)(4) (e.g., Laura is drafting documents that are intended to have their effect in Massachusetts and will be governed by Massachusetts law), at what point does the flow of clients become so significant that Laura needs to become licensed to practice law in New Hampshire? Put another way, at what point does her practice in New Hampshire become sufficiently “systematic and continuous” to trigger Rule 5.5(b)(1)?
Currently, Comment [4] to the Rule offers limited guidance as to the second question. It says that a lawyer’s “[p]resence may be systematic and continuous even if the lawyers is not physically present” in the jurisdiction. Thus, the Rule and the Comment do not tell us much about how extensive the practice can be in a jurisdiction before admission is required.
The ABA Commission on Ethics 20/20 released a paper today that asks whether Rule 5.5 should be revised to offer more guidance on this second question. One option the paper identifies is a Comment-based approach that would list a variety of factors that are relevant to determining whether a lawyer's contacts are "systematic and continuous," including:
- the nature and volume of communications directed to potential clients in the jurisdiction;
- whether the purpose of the communications is to obtain new clients in the jurisdiction;
- the number of the lawyer’s clients in the jurisdiction;
- the proportion of the lawyer’s clients in the jurisdiction;
- the frequency of representing clients in the jurisdiction;
- the extent to which the legal services have their predominant effect in the jurisdiction; and
- the extent to which the representation of clients in the jurisdiction arises out of, or is reasonably related to, the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice
Is this a workable solution? If not, is there another approach that would be preferable? Or is the applicable standard so inherently vague that it is difficult to say more than "systematic and continous" contacts require admission?
Civil procedure buffs will recognize "the systematic and continuous" phrasing as the standard for when general in personam jurisdiction is established (i.e., when a defendant's contacts with a state are so extensive that the defendant is subject to personal jurisdiction for claims that may have arisen elsewhere). Given that the Supreme Court hasn't offered very clear guidance as to what the phrase means in the personal jurisdiction context, perhaps the concept is not capable of clear expression. On the other hand, personal jurisdiction and multijurisdictional practice are distinct concepts with different underlying policies, so perhaps Rule 5.5(b) should not encompass the same kinds of contacts with a jurisdiction as the concept of general jurisdiction.
If the Commission produces any proposal on this issue, it won't be presented to the ABA House of Delegates until February 2013. In the meantime, what do you think? How, if at all, would you address this issue?