United States: Multijurisdictional Practice And Unauthorized Practice Of Law

The pandemic has forced lawyers to rethink how— and where—they work. Even with a hopeful return to "normal," flexible working arrangements are likely to continue in some form, making it crucial for lawyers and firms to pay careful attention to multijurisdictional practice and unauthorized practice of law ("UPL") rules. Two factors in particular can make navigating these rules a challenge.

First, while lawyers generally are accustomed to consulting the rules of the jurisdictions in which they are licensed, UPL questions arise, by definition, in jurisdictions in which they are not licensed, and thus may involve regulatory frameworks, authority and customs with which they are unfamiliar.

Second, there are significant differences in the multijurisdictional practice and UPL rules from state to state. The Arizona UPL rule in particular is unique in several key respects, and Arizona lawyers who practice in other jurisdictions should be mindful that the rules in those states may be more restrictive.

All jurisdictions including Arizona have a rule that tracks, at least to some extent, ABA Model Rule ("Model Rule") 5.5. Accordingly, this article addresses the major portions of Model Rule 5.5 as a starting point and then highlights differences in the Arizona rule. It also discusses remote working arrangements.

Prohibited Acts

The Model Rule and the analogous rules of other jurisdictions begin by identifying, as a prohibited act, practicing law in a jurisdiction in a manner that violates the regulation of law in that jurisdiction: "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."¹

The final clause—"or assist another in doing so"—is largely co-extensive with Model Rule 8.4, which separately makes it misconduct for a lawyer to "knowingly assist or induce another to" violate the rules.² This language is of particular importance to lawyers who serve as local counsel or co-counsel in a jurisdiction in which another lawyer working on a matter is not admitted, who must satisfy themselves that the out-of-state lawyer is in compliance with the rules.

In addition, Model Rule 5.1(a) separately imposes on law firm partners and lawyers with managerial authority a duty to ensure the firm "has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct." Accordingly, for lawyers who work in firms, compliance with UPL rules is a shared responsibility.³

The potential consequences of unauthorized practice can be severe. A lawyer found to have engaged in unauthorized practice in any jurisdiction faces the possibility of discipline by reciprocity in the jurisdictions in which the lawyer is admitted.⁴

When Does a Lawyer Practice Law "In" a Ju

Subsection (b) of Model Rule 5.5 seeks to establish when a lawyer's conduct and connection with a jurisdiction amounts to the practice of law in that jurisdiction.

First, consistent with the rule's governing principle of ensuring members of the public and clients have adequate assurance that a lawyer is regulated by the jurisdiction in which he or she practices, a lawyer must be admitted in a jurisdiction in order to "hold out to the public or otherwise represent that the lawyer is admitted to practice in [that] jurisdiction."⁵ This provision is relatively straightforward, but lawyers (and their firms) should be mindful of communications that might incorrectly imply admission in a jurisdiction. For example, a lawyer whose website mentions an office or mentions representative cases in a particular jurisdiction, without disclaimers or clear language about states of admission, may be deemed to have violated the rule.

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Previously published in the Arizona Attorney

Footnotes

1. Model Rule 5.5(a).

2. Interestingly, the specific prohibition on assisting another's violation in Model Rule 5.5(a) omits the word "knowingly." Proof of a "knowing" violation of a rule is a high standard, requiring a showing of "actual knowledge of the facts in question." See ABA Model Rule 1.0(f); Ariz. ER 1.0(f). It is unclear whether omission of the word "knowingly" in Rule 5.5(a) was intentional or whether the drafters intended the prohibition on assisting unauthorized practice of law in Model Rule 5.5(a) to require a lower level of scienter.

3. See, e.g., In re Hrones, 933 N.E.2d 622, 629-30 (Mass. 2010) (lawyer suspended for allowing unlicensed law school graduate to run discrimination practice out of lawyer's office).

4. See Model Rule 8.5.

5. Model Rule 5.5(b)(2).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.