Ethics

Lawyers must be cautious about practicing in multiple jurisdictions

, The Legal Intelligencer

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Samuel Stretton
Samuel Stretton

Lawyers must be cautious about 
practicing in multiple jurisdictions.

I am a lawyer licensed in Pennsylvania, but at times I get cases in New Jersey and Delaware from people I know. If the matter goes to litigation, I retain local counsel and then file a motion pro hac vice. But I handle the cases myself until that point. Is that permissible or does it violate the rules about unauthorized practice of law in those jurisdictions?

The question is a timely one and an issue all lawyers have to be careful of. Delaware in particular has been extremely harsh in prosecuting Pennsylvania lawyers for the unauthorized practice of law and seeking suspensions, if not disbarment.

At least in one case, a lawyer was disbarred because she handled first-party insurance matters in Delaware. She had local counsel if the matters went to trial. She also had an oral opinion from the Pennsylvania Bar Association saying she could do that. She made the mistake of attending and handling an insurance hearing when the local counsel didn't show up. Because she had a number of cases, the Supreme Court of Delaware found her in violation of rules against the unauthorized practice of law and disbarred her. She was disbarred even though she was not admitted in Delaware. As a result of that disbarment, she was then disbarred in Pennsylvania based on reciprocal discipline.

Delaware's harshness seems foolhardy to some extent, because many of their corporate lawyers give advice to Pennsylvania and other states' clients without being licensed there. The Delaware Supreme Court appeared to only view the supposed misconduct from the perspective of out-of-state lawyers and not look at the conduct of their own lawyers. Those decisions should be very worrisome to any corporate or business counsel who have a multijurisdictional practice but are only admitted in one state.

The appropriate rule to look at is Rule 5.5, "The Unauthorized Practice of Law in Multijurisdictional Practice." Although this law is still fairly stringent, it was meant to recognize the fact that multijurisdictional practice is occurring more and more. This has happened because of modern technology. Concerns of the past that a lawyer could not be fully informed of the law in another jurisdiction have slowly dissipated because of the access to computerized legal research programs where any lawyer can have easy access to all the laws in any jurisdiction.

Under Rule of Professional Conduct 5.5(a), a lawyer cannot practice in another jurisdiction. Under Rule 5.5(b), a lawyer not admitted in the state cannot hold himself or herself out and have a systematic and continuous presence in that state.

But under Rule 5.5(c), there is some flexibility. A lawyer can provide some legal services on a temporary basis in another jurisdiction. Temporary is emphasized. That can occur if the lawyer has undertaken association with a lawyer who is admitted to practice in the other jurisdiction and actively participates in the matter. It can also occur if the lawyer has a reasonably related or pending case in another jurisdiction and has another lawyer assisting. It can also occur if the lawyer is reasonably related to pending or potential arbitration or mediation of a proceeding in another jurisdiction or, finally, if the case is reasonably related to the lawyer's practice in the lawyer's jurisdiction.

Obviously, these are very limited activities and there is a need for local counsel. The best practice for a lawyer handling a case in another jurisdiction is to get a pro hac vice admission.

The warnings are clear. If a lawyer is handling other cases, such as first-party insurance cases, there cannot be numerous cases. There cannot be a systematic presence. The lawyer's involvement can only be temporary.

Under Comment 10 to Rule 5.5, the following is noted:

"Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which this lawyer is authorized to practice law or which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct includes meeting with the client, interviews of potential witnesses and a review of documents."

Probably one of the biggest changes in the next 40 or 50 years in the practice of law will be the rapid expansion of multijurisdictional practice and the loosening of these rules about unauthorized practice of law. But there will be some battles before that occurs.

Anyone who has come up against the unauthorized practice of law complaint, particularly in Delaware, and to a lesser extent in Pennsylvania, knows how hard local bar associations fight to maintain the integrity of their bars and to prevent lawyers from other states from taking business.

That may well be true, but the days of provincial law practicing where a lawyer is limited to one jurisdiction are rapidly disappearing with technology. Multijurisdictional practice is now becoming accepted. More and more, the rules will be loosened and perhaps there may someday be a national law license, although that might not be desirable. There is something about keeping law to some extent anchored in local admission that helps to maintain the integrity and essence of being a lawyer.

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