Mais conteúdo relacionado Semelhante a Multijurisdictional practice issues for traveling lawyers ethics michael_downey (20) Mais de Armstrong Teasdale (20) Multijurisdictional practice issues for traveling lawyers ethics michael_downey1. © 2014 Armstrong Teasdale
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© 2014 Armstrong Teasdale
LLP
Multijurisdictional Practice Issues
for Traveling Lawyers
Michael Downey
June 2014
2. © 2014 Armstrong Teasdale
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Consequences of Unauthorized Practice
Criminal liability
Discipline
Civil liability (plus perhaps statutory fees and damages)
(Greater) malpractice liability
Privilege issues
Fee forfeiture issues
Invalidity of actions (e.g., invalid answer or notice of appeal)
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Today's Program
What is the practice of law
Who can practice law
Where can a lawyer practice
Which rules/court regulate practice
Review
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"Practicing Law" – 3 Categories
Activities only lawyers can do (for someone else/for
pay)
• Appear in court
• Sign pleadings
• Take depositions
• Hold oneself out as a lawyer
Activities lawyers – and select professionals – can do
Activities that, when done by a lawyer, constitute the
practice of law
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ABA Effort to Define "Practice of Law"
2002 Commission ran into resistance from FTC
Final recommendation in 2003:
• States should adopt own definition
• Include the "basic premise that the practice of law is the
application of legal principles and judgment to the
circumstances or objectives of another person or entity"
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Missouri Definition
It is "impossible to lay down an
exhaustive definition of the 'practice of
law.'" In re First Escrow, Inc., 840 S.W.2d
839, 843 n.6 (Mo. 1992)
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Missouri Statute – "Practice of Law"
Mo. Rev. Stat. § 484.010.1
The "practice of law" is . . . defined to be and is
• the appearance as an advocate in a representative capacity
or
• the drawing of papers, pleadings or documents or
• the performance of any act in such capacity in connection
with proceedings pending or prospective before any court
of record, commissioner, referee or any body, board,
committee or commission constituted by law or having
authority to settle controversies.
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Missouri Statute – "Law Business"
Mo. Rev. Stat. § 484.010.1
The "law business" is . . . defined to be and is
• advising or counseling for a valuable consideration of any
person, firm, association, or corporation as to any secular
law or
• the drawing or the procuring of or assisting in the drawing
for a valuable consideration of any paper, document or
instrument affecting or relating to secular rights or
• the doing of any act for a valuable consideration in a
representative capacity, obtaining or tending to obtain or
securing or tending to secure for any person, firm,
association or corporation any property or property rights
whatsoever.
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What Is Not the Practice of Law
Filling in forms – but helping select which form to use is likely
the practice of law – MO Opinion 20000029
Reviewing lease to make sure it accurately states parties'
agreement (without evaluating whether to add extra
provisions) – MO Opinion 940126
Performing basic investigatory services like requesting and
reviewing medical or police records – Mo Opinion 970045
Taking a sworn statement during an investigation – Mo Opinion
2003002
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Bar Admissions – Three-Steps
Legal Education or
Substitute
Bar Examination or
Substitute
Character & Fitness
Examination
• ABA Accredited Law
School
• (Foreign/non-
approved law school
plus practice)
•(Foreign/non-
approved law school
plus 24 credits at ABA-
approved school)
• State bar
examination
• Motion/reciprocity (5
of 10 prior years)
•In-house admission
•(Diploma privilege)
• Character and fitness
examination
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Temporary Admission – Rule 8.06
Qualified for admission
In good standing in another jurisdiction
Seeking admission through another means
Lasts up to one year (lost if other attempt at admission fails)
Need supervising Missouri lawyer
(Very short, simple form)
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Other Means of Admission
Pro hac vice admission
Foreign legal consultants – only on the law of the jurisdiction
where the foreign legal consultant is admitted (Rule 9.05)
Responding to disasters
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Reciprocity Issues
Many states limit practice to lawyers whose home
states allow that state's lawyer to practice
Example: Missouri Rule 9.02 allows non-resident
lawyers who are Missouri Bar members to practice
only if the lawyer's home state allows non-resident
bar admittees to practice
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Practice Permitted
In state where licensed
Before federal court (agency) where admitted
In other jurisdictions where actions are "temporary"
and "permitted"
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Federal Courts
Supreme Court – special rule
Appellate Courts – admitted to any other state or federal court
District Courts – quite a lot of variation
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"Multijurisdictional Practice"
Old – Simple rule (two principles) and
precedent
New – Much more complicated rule
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Missouri Rule 4-5.5(a)
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
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So, What is UPL? Rule 4-5.5(b)
A lawyer who is not admitted to practice in this
jurisdiction shall not:
(1) except as authorized by this Rule 4 or other law,
establish an office or other systematic and
continuous presence in this jurisdiction for the
practice of law; or
(2) hold out to the public or otherwise represent that
the lawyer is admitted to practice law in this
jurisdiction.
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Permitted "Temporary" Practice – Rule 4-5.5(c)
A lawyer admitted and authorized to practice law in another United States
jurisdiction and not disbarred or suspended from practice in any jurisdiction
may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice
in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before
a tribunal in this or another jurisdiction if the lawyer or a person the
lawyer is assisting is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction if the services arise out of or are reasonably related
to the lawyer's practice in a jurisdiction in which the lawyer is admitted
and authorized to practice law and are not services for which the forum
requires pro hac vice admission;
(4) . . .; or
(5) ….
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A lawyer admitted and authorized to practice law in another United
States jurisdiction and not disbarred or suspended from practice in
any jurisdiction may provide legal services on a temporary basis in
this jurisdiction that:
(1) …
(2) …
(3) …
(4) are provided to the lawyer's employer or its organizational
affiliates and are not services for which the forum requires pro
hac vice admission; or
(5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of
or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted and authorized to
practice law.
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Summarizing Rule 4-5.5(c)
Temporary practice is permitted when
• Local counsel actively participates
• Pro hac vice has been obtained or is anticipated
• It is ADR and arises from jurisdiction where admitted
• Temporary practice by in-house lawyer
• "Arise out of and are reasonably related" to practice in
jurisdiction of license
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Unauthorized v. Authorized Practice
Danger
Activities in
jurisdiction
that probably
equal UPL
Safety
Activities in
jurisdiction that
are not UPL
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What's on Continuum
Danger – Rule 4-5.5(b)
- Establishing Office
- Systematic &
Continuous Presence
- Hold out as Lawyer in
Jurisdiction
Safety – Rule 4-5.5(c)
- Licensure (in-house,
temporary, etc.)
"Temporary" practice –
Local Counsel
Pro Hac Vice
Arbitration
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Active Local Counsel
A lawyer . . . may provide legal services on a temporary basis in
this jurisdiction that:
(1) are undertaken in association with a lawyer who is
admitted to practice in this jurisdiction and who actively
participates in the matter;
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Pro Hac Vice Admission
A lawyer . . . may provide legal services on a temporary basis in
this jurisdiction that:
(1) …
(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another
jurisdiction if the lawyer or a person the lawyer is
assisting is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
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Pro Hac Vice Rule
A lawyer seeking to appear pursuant to Rule 9.03 shall pay a
fee equal to the fee paid by lawyers under Rule 6.01(j)(1), with
the fee to be paid for each case in each court or administrative
tribunal in which the lawyer seeks to appear.
The fee shall be paid to the clerk of this Court, who shall
transfer the fee to The Missouri Bar as provided in Rule 6.07.
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ADR Exception
A lawyer . . . may provide legal services on a temporary basis in
this jurisdiction that:
(1) …
(2) …
(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute
resolution proceeding in this or another jurisdiction if the
services arise out of or are reasonably related to the
lawyer's practice in a jurisdiction in which the lawyer is
admitted and authorized to practice law and are not
services for which the forum requires pro hac vice
admission;
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A lawyer admitted and authorized to practice law in another
United States jurisdiction and not disbarred or suspended from
practice in any jurisdiction may provide legal services on a
temporary basis in this jurisdiction that:
(1) …
(2) …
(3) …
(4) are provided to the lawyer's employer or its
organizational affiliates and are not services for which the
forum requires pro hac vice admission; or
(5) ….
In-House Counsel Exception
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A lawyer admitted and authorized to practice law in another United
States jurisdiction and not disbarred or suspended from practice in
any jurisdiction may provide legal services on a temporary basis in
this jurisdiction that:
(1) …
(2) …
(3) …
(4) …
(5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of
or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted and authorized to
practice law.
"Arising Out of" Licensed Practice
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"Federal Practice" Exception – Rule 4-5.5 cmt [4]
Federal law, including but not limited to international treaties,
may require that a lawyer be permitted to practice in this
jurisdiction. Federal law that admits a lawyer to appear in a
federal court or other tribunal does not authorize a lawyer to
establish an office or other systematic and continuous
presence to engage in other aspects of the practice of law in
this jurisdiction.
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ABA Model Rule 5.5(d)
A lawyer admitted in another United States jurisdiction or in a
foreign jurisdiction, and not disbarred or suspended from practice in
any jurisdiction or the equivalent thereof, may provide legal services
through an office or other systematic and continuous presence in
this jurisdiction that :
(1) are provided to the lawyer's employer or its organizational
affiliates; are not services for which the forum requires pro hac
vice admission; and, when performed by a foreign lawyer and
requires advice on the law of this or another jurisdiction or of
the United States, such advice shall be based upon the advice
of a lawyer who is duly licensed and authorized by the
jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other
law or rule to provide in this jurisdiction.
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Model Rule 5.5 comment [16]
To further decrease any risk to the client, when advising on the
domestic law of a United States jurisdiction or on the law of
the United States, the foreign lawyer authorized to practice
under paragraph (d)(1) of this Rule needs to base that advice
on the advice of a lawyer licensed and authorized by the
jurisdiction consult with a U.S. lawyer authorized to provide it
that advice.
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Missouri Rule 4-8.5(a)
A lawyer admitted to practice in this jurisdiction is subject to
the disciplinary authority of this jurisdiction regardless of
where the lawyer's conduct occurs.
A lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer provides
or offers to provide any legal services in this jurisdiction.
A lawyer may be subject to the disciplinary authority of both
this jurisdiction and other jurisdictions for the same conduct.
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Choice of Ethics Rules --
In any exercise of the disciplinary authority of this jurisdiction,
the rules of professional conduct to be applied shall be as
follows:
(1) for conduct in connection with a matter pending before a
tribunal, the rules of the jurisdiction in which the tribunal
sits, unless the rules of the tribunal provide otherwise;
and
(2) for any other conduct, the rules of the jurisdiction in
which the lawyer's conduct occurred or, if the
predominant effect of the conduct is in a different
jurisdiction, the rules of that jurisdiction.
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"Safe Harbour" – Rule 4-8.5(a)
A lawyer shall not be subject to discipline if the lawyer's
conduct conforms to the rules of a jurisdiction in which the
lawyer reasonably believes the predominant effect of the
lawyer's conduct will occur.
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Lawyer-Client Agreements – Model Rule
8.5 comment (Ethics 20/20)
[5] When a lawyer's conduct involves significant contacts with
more than one jurisdiction, it may not be clear whether the
predominant effect of the lawyer's conduct will occur in a
jurisdiction other than the one in which the conduct occurred.
. . . With respect to conflicts of interest, in determining a
lawyer's reasonable belief under paragraph (b)(2), a written
agreement between the lawyer and client that reasonably
specifies a particular jurisdiction as within the scope of that
paragraph may be considered if the agreement was obtained
with the client's informed consent confirmed in the
agreement.
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Supervisory Responsibility – Rule 4-5.1
(a) A partner in a law firm, and a lawyer who individually or
together with other lawyers possesses comparable
managerial authority in a law firm, shall make reasonable
efforts to ensure that the firm has in effect measures giving
reasonable assurance that all lawyers in the firm conform to
the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another
lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.
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"Vicarious" Liability – Rule 4-5.1(c)
(a) ….
(b) ….
(c) A lawyer shall be responsible for another lawyer's violation of the
Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial
authority in the law firm in which the other lawyer practices,
or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial
action.
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Scenario 1
Lawyer admitted only in Missouri
Lawyer moves to office another state (say, Illinois)
Lawyer begins to practice law from an office in that
other state
Is this UPL?
• What if Lawyer only works on cases pending in
Missouri?
• What if Lawyer only works for Company XYZ as in-
house counsel?
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Scenario 2
In-House Counsel (IHC) is licensed only in Missouri
While located in Missouri, IHC constantly
negotiates contracts with Company's employees in
another state (Illinois)
IHC also handles all EEOC/State employment
investigations
IHC will retain local counsel if litigation or a
regulatory proceeding results
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Scenario 3
Lawyer licensed only in Missouri
Client in Other State (Arkansas) calls and needs an
answer filed immediately in lawsuit pending in Other
State (Arkansas)
Lawyer files answer in Other State along with request
for pro hac vice admission
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Scenario 4
Lawyer is licensed only in Missouri
Lawyer moves to Colorado to do non-legal work for
Corporate Employer
Friend in Colorado asks Lawyer to review a mineral
lease
Based on Office of Lawyer Regulation v. Bolte (Wis.
2005)
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Scenario 5
Lawyer licensed in Missouri is litigating case pending
in Missouri
Lawyer needs to depose or interview witness in Other
State (Delaware)
Lawyer licensed in Other State (Delaware) represents
witness
Who needs to worry about UPL?
Whose rules apply?
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Scenario 6
Lawyer is licensed only in Missouri
Lawyer moves to Michigan and opens office only to
practice federal bankruptcy litigation
Key cases – Sperry v. Florida Bar (US 1963)
In re Desilets, 247 B.R. 660 (Bankr. W.D. Mich 2000),
aff'd, Rittenhouse v. Delta Home Improvement, Inc.,
255 B.R. 294 (W.D. Mich. 2000)
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Scenario 7
In-House Counsel is licensed only in Missouri
Company has case pending in Other State
In-House Counsel works on case including
investigation, meeting to discuss settlement, and
taking depositions
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Scenario 8
Other State Firm (OSF) has litigation in Missouri
OSF has no lawyers licensed in Missouri, so OSF hires local
counsel in Missouri (just to sign and file pleadings)
OSF Firm prepares brief that misstates governing law
Missouri lawyer signs and files brief
Has anyone engaged in UPL?
Who is responsible for misstatement of the law?
Based on In re Wilkins (Ind. 2002)
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Scenario 9
Missouri Firm has no attorneys licensed in Other State
Client in Other State hires Missouri Firm to conduct
internal investigation in Other State
Is this UPL in Other State?
Based on Decker, Hallman, Barber & Briggs matter
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Scenario 10
Lawyer is licensed only in Missouri
Lawyer receives case likely to be filed in Other State
for Missouri client
Lawyer travels to Other State many times to meet
with client and investigate claim
Lawyer settles matter before filing suit in Missouri
Was this UPL?
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Virginia New UPL Law
(C) Definition of "Non-lawyer." – the term "non-lawyer" means any person, firm,
association or corporation not duly licensed or authorized to practice law in the
Commonwealth of Virginia. However, any lawyer not licensed to practice law in
Virginia, but licensed in any other state or territory of the United States or the
District of Columbia, or a foreign nation, who provides legal advice or services to
clients in Virginia, shall not be subject to these Unauthorized Practice rules but shall
be subject to the laws, rules and regulations of the jurisdiction(s) in which he/she is
licensed to practice, as well as otherwise applicable Virginia Law including the
Virginia Rules of Professional Conduct.
(D) The Unauthorized Practice rules which follow represent a nonexclusive list of
specific types of practice which would violate these rules.
January 11, 2010
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Other States on UPL
District of Columbia Court of Appeals Rule 49(c)(6) expressly
exempts "[p]roviding legal advice only to one's regular
employer, where the employer does not reasonably expect
that it is receiving advice from a person authorized to practice
law in the District of Columbia" from conduct that constitutes
the unauthorized practice of law.
North Carolina generally provides under State v. Pledger (NC
1962) and its progeny that a corporate employee is not
practicing law as long as (a) the corporate employer has a
primary interest in the matter and (b) the work does not
involve appearing in court, other than small claims court.
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Possible Changes
GATS – General Agreement on Trade in Services –
impact on licensure?
Federalization of Bar Admissions and Regulation
• Securities lawyers
• Gramm-Leech Bliley and FTC Red Flags
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Litigation over MJP
NAAMJP v. Simandle (D.N.J. June 9, 2014) – challenging NJ federal court local
rule for admitting only NJ-admitted attorneys to NJ federal court
• Exceptions to NJ Rule – resident patent attorneys, criminal defense
attorneys
NAAMJP v. Roberts (D.D.C. 2013) – challenging DC federal local court rule for
admitting only those licensed in states that give reciprocity to DC lawyers to DC
federal court
• 25 of 94 courts (15 states)
NAAMJP v. Castille (E.D. Pa. 2013) -- challenging PA federal local court rule for
admitting only those licensed in states that give reciprocity to PA lawyers to PA
federal court
• 38 states plus DC
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Thank You
Michael Downey
Armstrong Teasdale LLP
314-342-8072 (extension 7032)
Mdowney@armstrongteasdale.com
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