The Unauthorized Practice of Law: Multi-jurisdictional Practice. Introduction. The Unauthorized Practice of Law (UPL) provisions prohibit lawyers from

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1 Jessika Tate Lawyering 21st Century Professor Maute Short Paper #3 Research Paper The Unauthorized Practice of Law: Multi-jurisdictional Practice Introduction The Unauthorized Practice of Law (UPL) provisions prohibit lawyers from engaging in the practice of law except in states in which they are licensed are otherwise authorized to practice law in. 1 Consider the situation where a lawyer drafts a will for a client in State A, and is later asked by that same client to draft a codicil to the will after the client has moved to State B. Lawyer is not licensed in State B. May the lawyer continue to undertake the client s representation in State B without violating the ethical rules? The situation described above is a typical example of Multi-jurisdictional Practice (MJP). MJP describes the legal work of a lawyer in a jurisdiction in which the lawyer is not admitted to practice law. 2 Jurisdictional restrictions on the practice of law were not historically a matter of concern, because most clients legal matters were confined to a single state. 3 Due to technology and our growing global economy, this is not the case today. Today, many clients, both individuals and entities, regularly engage in activities and transactions that involve two or more states. Because of the growing needs and 1 American Bar Association Report to the Commission on Multi-jurisdictional Practice August 2002, pg 3 available at: 2 Id. at 5. 3 Id. at 3. 1

2 expectations of clients, lawyers often have to travel outside the state they are licensed to conduct negotiations, gather information, provide advice, or perform other tasks relating to the representation, which may be in violation of the ethical rules. 4 Oklahoma Rules Governing Multi-jurisdictional Practice The Oklahoma Rules of Professional Conduct Rule 5.5 simply states that a lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. 5 Unlike the ABA Model Rules, the Oklahoma Rules of Professional Conduct do not have specific provisions regulating permissible types of multi-jurisdictional practice. Lawyers must look to case law to provide guidance on permissible types of multi-jurisdictional practice. In Norton v. Hughes, a client sued an Oklahoma attorney for negligence for refusing to file a lawsuit against a Texas resident for breach of contract in a Texas state court. 6 The Oklahoma Supreme Court determined absent pro hac vice admission, an Oklahoma attorney had no duty to file a lawsuit in a foreign jurisdiction in which the attorney was not licensed to practice law. 7 The court said that pro hac vice is a privilege, not a right, that is subject to the sound judicial discretion of the state trial court. 8 In connection with litigation, it is not uncommon for parties to retain lawyers in whom they have particular confidence, or whom they have a prior relationship, to 4 Id. at Okla. R. Prof. Conduct 5.5 (a) (b) (2005). 6 Norton v. Hughes, 2000 OK 32, 14, 5 P.3d 588 (Okla. 2000). 7 Id. at Id. 2

3 represent them in lawsuits in jurisdictions in which the lawyers are not licensed. 9 Often these lawyers are admitted pro hac vice to perform legal services for their client outside their jurisdiction. 10 Pro hac vice admission gives a lawyer court permission to perform legal services outside their jurisdiction for purposes of the particular matter only in that court. 11 However, the problem with relying on pro hac vice admission is that it may not always be an option for every lawyer because lawyers often have to perform work outside their admission states for which they cannot obtain pro hac vice admission to do. 12 One, because pro hac vice is not available prior to filing a lawsuit and two, the court many not authorize pro hac vice for work that is not related to a judicial proceeding in the particular state. 13 For example, litigators often go outside their jurisdiction to perform legal services for a client before a lawsuit is filed. 14 Litigators often perform services like reviewing documents, interviewing witnesses, entering into negotiations, and conducting other activities ancillary to a lawsuit pending in a state in which they are not authorized to practice. 15 Activities ancillary to a lawsuit includes forms of alternative dispute resolution (ADR) like mediation or arbitration that may arise out of a lawyer s practice in the admitted state. 9 American Bar Association Report to the Commission on Multi-jurisdictional Practice August 2002, pg Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 3

4 In ADR proceedings, it is common for a lawyer to render services outside the particular state in which they are licensed. 16 These services may not arise out of or be reasonably related to her practice in the state in which she is admitted, which may a lawyer major problems if their services are deemed to be the unauthorized practice of law. 17 For example, clients may choose to conduct the ADR proceeding in a state that has no relation to the parties or the dispute, because they prefer a neutral site. 18 In this situation, knowledge of state law and procedure is not necessary and is not the main consideration for the client. 19 The main consideration for the client becomes selecting a lawyer that has knowledge of the facts and that the client has already established a clientlawyer relationship. 20 The Debate Multi-jurisdictional Practice has been a cause of major concern and debate. On one side of the issue, states have expressed concerns that UPL restrictions need to be applied literally in order to ensure lawyers practicing in the state are competent and do so ethically and professionally. 21 On the other side of the issue, lawyers have expressed concern that if UPL restrictions are applied literally, the laws will impede lawyer s ability to meet their clients multi-state and interstate needs effectively and efficiently American Bar Association Report to the Commission on Multi-jurisdictional Practice August 2002, pg Id. at Id. 19 Id. 20 Id. 21 Id. at Id. 4

5 These concerns were heightened by the California Supreme Court decision Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 949 P.2d 1 (Cal. 1998), which held that lawyers not licensed to practice in California violated California s UPL provision when they assisted a California corporate client in connection with an impending California arbitration under California law. 23 The lawyers were further barred from recovering fees under a written fee agreement for services the lawyers rendered while they were physically in California. 24 In response to the concerns set forth by this case as long with the growing concerns of the legal community, the ABA appointed the Commission in July 2002 to issue a report on multi-jurisdictional practice and make recommendations. The Commission made a number of recommendations, but the following I found the most pertinent. 1. The ABA re-title Rule 5.5 of the Rules of Professional Conduct as Unauthorized Practice of Law: Multijurisdictional Practice of Law. 2. The ABA adopt proposed Rule 5.5 (c) to identify circumstances in which a lawyer who is admitted in a United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may practice law on a temporary basis in another jurisdiction, these would include: 23 American Bar Association Report to the Commission on Multi-jurisdictional Practice August 2002, pg Id. 5

6 Work on a temporary basis in association with a lawyer admitted to practice law in the jurisdiction, who actively participated in the representation; Services ancillary to pending or prospective litigation or administrative agency proceedings in a state where the lawyer is admitted or expects to be admitted pro hac vice or is otherwise authorized to appear; Representation of clients in, or ancillary to, an alternative dispute resolution setting, such as arbitration or mediation; and Non litigation work that arises out of or reasonably related to the lawyer s practice in which the lawyer is admitted to practice. 25 Conclusion Although client s needs have evolved over time because of the changes in technology and the growing economy, lawyer regulation has still not yet fully responded to that evolution. The ABA 2002 Report of the Commission is a step in the right direction to bringing these issues to the forefront. However, it is still up to the individual states to adopt the proposed changes to the Rule. Multi-jurisdictional practice will continue to be a major issue until the states step up and address the issue. 25 American Bar Association Report to the Commission on Multi-jurisdictional Practice August 2002, pg 6. 6

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