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

Similar documents
THE ETHICS OF OUTSOURCING LEGAL SERVICES

S03U1732. IN RE UPL ADVISORY OPINION This Court granted a petition for discretionary review brought by the State

ANNOTATED SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT

Procrastinators Programs SM

2009 CHANGES TO RULE 265 AND C.R.C.P. 5.4 BACKGROUND. Rule 265, Chapter 22 of the Colorado Rules of Civil Procedure (C.R.C.P.

COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW. Appointed by the Supreme Court of New Jersey

ETHICAL DUTIES OF LAWYER PAID BY ONE OTHER THAN THE CLIENT

FORMAL OPINION NO [REVISED 2015] Unauthorized Practice of Law: Lawyer as Mediator, Trade Names, Division of Fees with Nonlawyer

LOS ANGELES COUNTY BAR ASSOCIATION PROFESSIONAL RESPONSIBILITY AND ETHICS COMMITTEE. OPINION NO. 530 May 23, 2018

Attorney Occupational Tax and Client Security Fund Fee

American Bar Association Commission on Ethics 20/20 Resolution

Conflicts of Interest Concerns for Tax Professionals. Kyle Coleman

SCR 20:6.1 Voluntary pro bono publico service

The Code of Ethics for Arbitrators in Commercial Disputes Effective March 1, 2004

HOT TOPICS IN EMPLOYMENT LAW: WORKPLACE INVESTIGATIONS. Camille Hamilton Pating, Senior Of Counsel Chair, Workplace Investigations Practice

Comparison between SCC arbitration and CIETAC arbitration

INDEPENDENT CONTRACTOR AGREEMENT (ICA)

DIRECTORS & OFFICERS AND FIDUCIARY LIABILITY INSURANCE FOR ESOPS: The Exposure, the Solutions, the Marketplace

Table of Contents. SUMMARY OF KEY TERMS AGREEMENT TERMS Costs Overdraft Protection Payments

People v. Wehrle, 06PDJ006. March 20, Attorney Regulation. Following a sanctions hearing, a Hearing Board disbarred Richard Tell Wehrle

Lawyer Trust Accounting Basics

NYCLA COMMITTEE ON PROFESSIONAL ETHICS. OPINION No Date Issued: October 7, Topic

Judicial Process. Legal Aspects: Contract Law and Professional Liability. Court System. OAA Admission Course Charles Simco Shibley Righton LLP

Best Practices in Arbitration for Hospitality Cases

Information About Experian Credit Report and VantageScore credit score's Arbitration Program

Various publications, including FTB Publication 7277, "Personal Personal Income Tax Notice of Action

How Independent Am I? Ethical Obligations of Independent Counsel

LAWYERS PROFESSIONAL LIABILITY INSURANCE APPLICATION

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW. Appointed by the Supreme Court of New Jersey

Comparison of Newly Adopted Delaware Rules of Professional Conduct with ABA Model Rules DELAWARE

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES CITY OF SAN MATEO PUBLIC WORKS DEPARTMENT

SOUTHWIND VILLAGE COMMUNITY ASSOCIATION DELINQUENT ACCOUNT COLLECTION POLICY

With regard to these scenarios, your request poses the following questions:

People v. Lauren C. Harutun. 16PDJ072. March 23, 2017.

SunTrust Platinum Elite Card. Credit Card Account Agreement. Rev. 7/16

FLORIDA BAR ETHICS OPINION OPINION 93-2 October 1, Advisory ethics opinions are not binding.

Decided: April 20, S15Q0418. PIEDMONT OFFICE REALTY TRUST, INC. v. XL SPECIALTY INSURANCE COMPANY.

OUR WORK. TAX CONTROVERSY - Overview

March 13, Dear Minister: Tax Court of Canada

NOTICE TO CLASS MEMBERS OF PROPOSED CLASS ACTION SETTLEMENT & FINAL APPROVAL HEARING

RESOLUTION NO RESOLUTION OF THE BOARD OF DIRECTORS OF THE VECTOR CONTROL JOINT POWERS AGENCY REVISING THE LITIGATION MANAGEMENT POLICY

CURRICULUM VITAE. University of California at Santa Barbara, Bachelor of Arts - Political Science 1975

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND FINAL APPROVAL HEARING

SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE

CHAPTER 5. RULES REGULATING TRUST ACCOUNTS 5-1. GENERALLY RULE TRUST ACCOUNTS. (a) Nature of Money or Property Entrusted to Attorney.

COHEN & ASSOCIATES, INC. A Dispute Resolution Practice Mediation Arbitration Litigation Consulting

Edward J. Corey, Jr. Shareholder

MERGER AGREEMENTS. Trends in M&A Provisions: Alternative Dispute Resolutions (ADR) Provisions

TWELVE PICKET LANE HOMEOWNERS ASSOCIATION ASSESSMENT COLLECTION POLICY January 1, 2006

Registration Instructions for Pro Hac Vice Attorneys

OHIO RULES OF PROESSIONAL CONDUCT: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS, INCLUDING PARAPROFESSIONALS. Howard L. Richshafer, J.D., C.P.A.

MASSACHUSETTS IOLTA COMMITTEE

No. 07SA50, In re Stephen Compton v. Safeway, Inc. - Motion to compel discovery - Insurance claim investigation - Self-insured corporation

Superior Court of the State of Washington, Yakima County

Chair of panel in multimillion-dollar dispute involving claims of defective equipment supplied to a wind power project.

Mercantil Bank, N.A. Cardholder Agreement

o Do you think it s appropriate for the lawyer to act as a gatekeeper? Is that consistent with you obligation to be an advocate?

SUMMARY OF YOUR OPTIONS AND THE LEGAL EFFECT OF EACH OPTION APPROVE THE

Administrative Law Advanced Florida Bar Studies Advanced Legal Research (Skills) Advanced Trademark and Copyright Alternative Dispute Resolution

Doing Good, While Doing Right by Your Client: A Guide to Ethical Considerations for Estate Planning Attorneys Serving on Charitable Boards

The Board s Oversight Role

The Business Divorce: Maximizing Value For Clients in Property Settlements Houston Bar Association - Family Law Section, October 7, 2015

6465 Wayzata Blvd., Suite 470 Minneapolis, MN Phone: Fax: CODE OF ETHICAL CONDUCT FOR ARBITRATORS

BEST PRACTICES IN INTERNATIONAL ARBITRATION. Summary of Contents

PLANNING YOUR COURSE OF STUDY (JURIS DOCTOR)

INSURANCE COVERAGE COUNSEL

Corporate Whistleblower Developments Mark Oakes Partner Fulbright & Jaworski LLP June 10, 2014

Contracting for Small Projects. DPLE 246 July 5, 2017

-Client Copy- Consumer Credit File Rights Under State and Federal Law

Case 9:18-cv DMM Document 1 Entered on FLSD Docket 04/05/2018 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE#

THE TRIPARTITE RELATIONSHIP: ETHICAL CONSIDERATIONS AND THE INSURED CLIENT S RIGHTS

RECENT DEVELOPMENTS IN INTERNATIONAL COMMERCIAL ARBITRATION

Request for Proposal. For Financial and Accounting Services

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

SERABRISA MAINTENANCE CORPORATION ASSESSMENT COLLECTION POLICY January 1, 2009

( ). See MyBestBuy.com for current rules.

THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE READ IT CAREFULLY. PLEASE DO NOT CONTACT THE COURT OR THE COURT CLERK REGARDING THIS MATTER

WORKWEEK DISPUTE FORM

WEATHERFORD DISPUTE RESOLUTION PROGRAM. Flexible options designed to help resolve conflicts in the workplace.

Group Retiree Medicare Advantage (MA) Plan Election Form Instructions How to Enroll

Fees and Expiration. Replacement Card at Expiration : There is no additional cost to obtain a replacement Card due to expiration.

OPINION AND ORDER IMPOSING SANCTIONS

Labor Chapter ALABAMA DEPARTMENT OF LABOR WORKERS' COMPENSATION DIVISION ADMINISTRATIVE CODE CHAPTER GENERAL PROVISIONS

Challenges and Considerations

IN THE SUPREME COURT OF FLORIDA. Case No. SC08- Lower Tribunal No. 3D BEATRICE PERAZA, Appellant, vs. CITIZENS PROPERTY INSURANCE CORPORATION,

Case: 1:18-cv Document #: 1 Filed: 06/29/18 Page 1 of 15 PageID #:1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

Defending Corporations and Individuals in Government Investigations Ethics & Whistleblower Issues In Investigations

Tuesday 21st June, 2011.

LOS ANGELES COUNTY BAR ASSOCIATION PROFESSIONAL RESPONSIBILITY AND ETHICS COMMITTEE. FORMAL OPINION NO. 511 December 15, 2003

University of California, Berkeley, B.A. Economics, with distinction University of California, Hastings College of Law, J.D.

Cardmember Agreement: Part 1 of 2

SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT

Request for Proposal. Legal Counsel to Serve as Fiduciary Counsel

Diners Club Charge Card Cardmember Agreement

AGREEMENT FOR CONSTRUCTION PROJECT MANAGEMENT SERVICES

Attorney s Fees in Trust and Estate Matters: The Search for the Fair and Reasonable

STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE. Opinion No

ELIOT M. HARRIS MEMBER. Eliot M. Harris

Berkley Insurance Company

LAWYERS PROFESSIONAL LIABILITY POLICY THIS IS A CLAIMS MADE AND REPORTED POLICY PLEASE READ CAREFULLY

Transcription:

Jessika Tate 3-29-2007 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: http://www.abanet.org/cpr/mjp/final_mjp_rpt_121702.pdf 2 Id. at 5. 3 Id. at 3. 1

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 11. 5 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 591-92 8 Id. 2

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 10. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 3

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. 22 16 American Bar Association Report to the Commission on Multi-jurisdictional Practice August 2002, pg 10. 17 Id. at 11. 18 Id. 19 Id. 20 Id. 21 Id. at 3. 22 Id. 4

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 4. 24 Id. 5

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

7