ethics of multijurisdictional practice · a. litigation practice questions ... b. litigation...

ETHICS OF MULTIJURISDICTIONAL PRACTICE

ERIC C. CAMP Decker, Jones, Mcmackin, Mcclane, Hall & Bates, P.C.

801 Cherry Street, Suite 2000 Fort Worth, Texas 76102

© 2012

State Bar of Texas 30TH ANNUAL

ADVANCED OIL, GAS AND ENERGY RESOURCES LAW COURSE October 18-19, 2012

Houston

CHAPTER 11

ERIC C. CAMP DECKER, JONES, MCMACKIN, MCCLANE, HALL & BATES, P.C.

Burnett Plaza, Suite 2000 801 Cherry Street, Unit #46

Fort Worth, Texas 76102-6836 [email protected] Phone: (817) 336-2400

Fax: (817)332-3043

Education: B.A. in Political Science, Centenary College of Louisiana, 2004 J.D., SMU Dedman School of Law, 2008

• Rocky Mountain Mineral Law Foundation Scholarship • Energy & Mineral Law Foundation Scholarship

Bar Admissions:

Texas, 2008 North Dakota, 2009

Publications & Presentations: Shale Gas Goes Global – Revisiting International E&P Contracts for Shale Gas Development, Review of Oil &

Gas Law XXV, Dallas Bar Association – Energy Law Section (2012) and 4th Annual Energy Symposium, Texas Wesleyan University School of Law (2012)

Oil & Gas Primer for the Real Estate Practitioner, Dallas Bar Association – Real Property Section (2011) Ethical Considerations of Getting Licensed in Multiple States, 37th Annual Ernest E. Smith Oil, Gas and Mineral

Law Institute (2011) and the Institute for Energy Law’s 2nd Conference on the Law of Shale Plays (2011) Dealing with Missing Persons and Holdouts – Using Rule 37 and MIPA for Urban Gas Development, Dallas Bar

Association – Energy Law Section (2011) Dealing with Missing Persons and Holdouts – Operators’ Options for Urban Gas Development, Section Report,

Oil, Gas, & Energy Resources Law Section, State Bar of Texas, V. 35, No. 1 (2010) Disclosures During Oil & Gas Lease Negotiations – Texas and Louisiana, Basin Oil & Gas Magazine (2010)

and the Dallas Association of Petroleum Landmen Newsletter (2010) Regulating Urban Oil & Gas Operations in Texas and Louisiana, Basin Oil & Gas Magazine (2009) Negotiating Surface Damage Payments, Fort Worth Basin Oil & Gas Magazine (2009) Mineral Estate Surface Use Limitations, Fort Worth Basin Oil & Gas Magazine (2009)

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Ethics Of Multijurisdictional Practice Chapter 11

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................................... 1

II. UNAUTHORIZED PRACTICE OF LAW ............................................................................................................. 1 A. Justifications for Prohibiting the UPL and Applicability to Out-of-State Attorneys ...................................... 2

1. Competent Representation ....................................................................................................................... 2 2. Character and Fitness to Practice Law..................................................................................................... 2 3. Assurance of Familiarity with Local Law and Procedures ...................................................................... 2 4. Competition with In-State Attorneys ....................................................................................................... 3

B. Possible Consequences for Violating a Jurisdiction’s UPL Rules .................................................................. 3 1. Disallowance of Attorney Fees ................................................................................................................ 3 2. Claims for Damages by Third Parties ...................................................................................................... 3 3. Malpractice Claims .................................................................................................................................. 4 4. Disbarment or Censure by State Bar Licensing Authorities .................................................................... 4 5. Criminal Prosecution ............................................................................................................................... 4

III. MULTIJURISDICTIONAL PRACTICE RULES .................................................................................................. 4 A. Traditional MJP Rules (or Lack Thereof) ....................................................................................................... 4 B. Modern MJP Rules – ABA Model Rules 5.5 and 8.5 .................................................................................... 4

1. Model Rule 5.5 – UPL; MJP of Law ....................................................................................................... 5 2. Model Rule 8.5 – Disciplinary Authority; Choice of Law ...................................................................... 6

C. State Adoptions and Variations of Model Rules 5.5 and 8.5 .......................................................................... 6 1. Texas ........................................................................................................................................................ 6 2. Colorado .................................................................................................................................................. 7

IV. EXAMPLES OF MULTIJURISDICTIONAL CONDUCT ................................................................................... 7 A. Litigation Practice Questions .......................................................................................................................... 7 B. Litigation Practice Answers ............................................................................................................................ 8 C. Transactional Practice Questions .................................................................................................................... 8 D. Transactional Practice Answers ...................................................................................................................... 9

V. RECOMMENDATIONS ........................................................................................................................................ 9 A. Advise Your Client You Are Not Admitted in the Jurisdiction. ..................................................................... 9 B. Recommend Engagement of Local Counsel. .................................................................................................. 9 C. Review the MJP and UPL Rules of All Jurisdictions Involved in a Particular Matter.................................. 10 D. Consider Seeking Admission to the Foreign Jurisdiction’s Bar. ................................................................... 10

APPENDIX A - State Implementation of ABA Model Rule 5.5 (Multijurisdictional Practice of Law) ...................... 11 APPENDIX B - State Implementation of ABA Model Rule 8.5 (Disciplinary Authority; Choice of Law) ................ 17 APPENDIX C - State Rules on Admission to the Bar by Motion (Reciprocity) .......................................................... 23


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ETHICS OF MULTIJURISDICTIONAL PRACTICE

I. INTRODUCTION The oil and gas industry is inherently

multijurisdictional. Productive formations frequently cross state lines and operators are usually active in multiple areas throughout the country.

Most oil and gas lawyers are located in the handful of states where the most oil and gas production has historically occurred. Now more than ever, however, operators are drilling wells in many other states and those states have few, if any, homegrown oil and gas lawyers. As such, oil many oil and gas attorneys frequently confront multijurisdictional issues representing their clients in their various ventures. For example, a client may ask an attorney licensed in a particular state to:

• assist with a transaction involving assets in

another state; • render a title opinion on property in another state;

or • develop an Oil & Gas Lease form for use in

another state. Accordingly, oil and gas attorneys need to be aware of the multijurisdictional practice (“MJP”) rules to avoid the unauthorized practice of law (“UPL”) and possible UPL sanctions.

This paper examines the issues that arise when an oil and gas attorney licensed in one state (the “home state”) practices law in another state (the “foreign state”) – when is such conduct the UPL and when is it permitted under the foreign state’s MJP rule? II. UNAUTHORIZED PRACTICE OF LAW

Each state sets its own qualifications for admission to its bar and prohibits the UPL. Three groups of persons come under every state’s prohibition on the UPL:

(1) persons who have never been admitted to

practice law in any jurisdiction; (2) persons who have been admitted to practice

in that state but have been formally suspended or disbarred or voluntarily allowed their licenses to lapse; and

(3) persons who are members in good standing of the bar of one or more jurisdictions, but

who engage in the “practice of law” in a state in which they are not admitted.1

This paper focuses on the third category.

Poor definitions of “practice of law,” “legal services,” and “UPL” blur the lines for determining what constitutes UPL in a particular jurisdiction.2 Broadly defining the practice of law has proven difficult for state courts.3 The Hawaii Supreme Court described the challenge this way:

attempts to define the practice of law in terms of enumerating the specific types of services that come within the phrase are fruitless because new developments in society, whether legislative, social, or scientific in nature, continually create new concepts and new legal problems.4

Thus, most states define the “practice of law” by what constitutes a violation of the UPL rule, such as "[p]ractic[ing] law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction."5 Courts recognize that the practice of law changes daily, but states continue to operate under 100+ year old UPL definitions. Such definitions are increasingly problematic and unduly burdensome as the legal profession (and world) unavoidably becomes multijurisdictional in nature.6

Each state’s common law has developed its own criteria or test to determine whether the practice of law by an out-of-state lawyer is unauthorized – and these criteria and tests vary from jurisdiction to jurisdiction. For example, UPL case law diverges with regard to the frequency of contact a lawyer has with the state – some allowing isolated representations and contacts while others consider a single representation or isolated event to be the UPL.7 And some states

1 Janet M. Johnson, Ethical and Practical Issues in Multijurisdictional Real Estate Practices, The John Marshal Law School Center for Real Estate Law – Ethics and Professionalism in Real Estate Transactions, May 16, 2010, at 1. 2 Christine R. Davis, Approaching Reform: The Future of Multijurisdictional Practice in Today’s Legal Profession, 29 FLA. ST. U. L. REV. 1339, 1342 (2002) (citing Robert D. Weldon, Defining “The Practice of Law” – Untying the Gordian Knot, Wash. St. B. News, Jan. 2001, at 41). 3 Id. 4 Fought & Co., Inc. v. Steel Eng’g & Erection, Inc., 951 P.2d 487, 495 (Haw. 1998). 5 Leis v. Flynt, 439 U.S. 438, 442 (1979). 6 Davis, supra note 2, at 1342. 7 Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (Cal. 1998) (finding that representation of one matter constituted UPL), Spivak v. Sachs, 211 N.E.2d 329 (N.Y. 1965) (finding lawyer


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have flip-flopped as to whether a single contact or representation constitutes UPL.

With each state having vague UPL laws and conflicting criteria and tests for determining UPL violations, it is extremely difficult for a lawyer to be sure whether the rules allow a representation in a foreign state or in a matter with foreign state issues. As a result, most lawyers are unaware that they could be violating a state UPL law.8

That being said, the core boundaries on the UPL are relatively well-defined throughout all of the states:

• one may not have an office in the state and hold

oneself out as a lawyer without being licensed in the state;9

• one may not file papers and appear in court without being licensed generally or appearing pro hac vice with local counsel;10 and

• one may not take on representation of an entirely out-of-state matter when and while physically located in that foreign jurisdiction, without being licensed in that state or at least working under the supervision of an attorney licensed in that state.11

A. Justifications for Prohibiting the UPL and

Applicability to Out-of-State Attorneys There are several legitimate justifications for

prohibiting the practice of law by any person not licensed in a jurisdiction. But few traditional justifications for prohibiting the UPL realistically apply to out-of-state attorneys. Instead, most apply more to laypersons and disbarred or suspended attorneys. 1. Competent Representation

UPL statutes’ primary purpose is to protect state residents from incompetent legal representation by inadequately trained persons unable to recognize legal issues pertaining to the client’s particular situation.12

But out-of-state attorneys have the same level of training and experience as in-state attorneys. They deal with the same types of legal issues and prevailing violated UPL laws even though conduct consisted of an isolated event), but see In re Estate of Waring, 221 A.2d 193 (N.J. 1966) (holding that isolated representation did not constitute UPL), El Gemayel v. Seaman, 533 N.E.2d 245 (N.Y. 1988) (finding contacts insufficient to constitute UPL). 8 Tamara Loomis, “Unauthorized Practice: Many Lawyers Do Not Know They Are in Violation,” N.Y. L.J., Mar. 29, 2001). 9 Mark D. Hinderks, On the Proper State of Things: Multijurisdictional Practice for the Kansas Practitioner, 74 J. Kan. B.A. 20 (Feb. 2005); Model Rule 5.5(b)(1), (2). 10 Hinderks, supra note 9; Model Rule 5.5(c)(2), (3). 11 Hinderks, supra note 9; see generally, Model Rule 5.5. 12 Johnson, supra note 1, at 2.

research methods. Variations exist from state-to-state, but most states’ oil and gas laws follow the same general principles – and sufficient resources exist for attorneys to identify the differences. 2. Character and Fitness to Practice Law

Prohibiting an attorney who has been disbarred or suspended is appropriate and furthers the state’s interest in protecting its citizens. By prohibiting an out-of-state attorney from practicing, the state can permit only attorneys who meet that state’s ethical standards to practice law.13

But out-of-state attorneys are subject to similar admission and disciplinary standards as in-state attorneys. And states’ respective Codes of Professional Conduct are very similar – all, except California, being based off of the ABA’s Model Rules of Professional Conduct (the “Model Rules”). Few, if any, differences exist that would legitimately render a lawyer admitted and in good standing in one state immediately suspect in any other state.14 3. Assurance of Familiarity with Local Law and

Procedures Attorneys licensed within a jurisdiction are

presumed to be familiar with that jurisdiction’s laws and trial procedures. Out-of-state attorneys would not have the same familiarity or competency.

And oil & gas is one area with numerous state peculiarities. Some examples include:

• the forms required for recordable documents; • voluntary and forced pooling; • post-production costs and calculating royalties; • surface damages; • pipeline condemnation procedures; • the manner in which real property loans are

secured; • the exercise of remedies associated with the

security instruments; • environmental laws; and • ad valorem and excise taxation.

Lack of familiarity with a state’s laws may have some merit as applied to an oil and gas practice.

It seems to be generally understood, however, that the lawyer’s special expertise resides more in “thinking like a lawyer” – knowing how to frame legal questions, how to research those questions, and recognizing legal issues that would likely escape a layperson – than in the factual knowledge of a particular jurisdiction’s law.15 This is particularly true

13 Id, at 3. 14 Id, at 4. 15 Johnson, supra note 1, at 5.


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in modern practice where there is a plethora of research materials comparing the relevant oil and gas laws of multiple states. 4. Competition with In-State Attorneys

Competition with in-state attorneys is rarely, if ever, stated explicitly in judicial decisions or bar opinions. But competition, while impossible to quantify, undoubtedly plays a significant role – limit competition from out-of-state attorneys.16 This probably best explains why certain jurisdictions decline to grant out-of-state attorneys reciprocity and instead require all bar applicants to take that jurisdiction’s bar exam. B. Possible Consequences for Violating a

Jurisdiction’s UPL Rules Attorneys involved in matters in foreign states, or

with foreign state issues, should be aware of the disciplinary rules applicable in all states involved in the matter. For their clients’ sake and their own, the attorneys should also be aware of the potential cost of “practicing law” in foreign states. Violating the UPL statutes can lead to many severe consequences.

1. Disallowance of Attorney Fees

This adverse consequence is sure to grab any attorney’s attention and is one of the most common remedies in UPL cases involving out-of-state attorneys. The most famous recent case that resulted in an out-of-state law firm’s denial of the right to pursue a claim for attorneys’ fees against a client because of the UPL is Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 949 P.2d 1 (Cal. 1998). The case arose out of a falling out between a New York-based firm that had agreed to represent ESQ Business Services, Inc., a California corporation with its principal place of business in California. ESQ was pursuing a claim against a computer company for breach of a software development and marketing contract governed by California law. Several Birbrower attorneys had traveled multiple times to California to meet with the client and computer company’s representatives to discuss strategies, make recommendations to ESQ, interview potential arbitrators, and discuss and negotiate a proposed settlement. The case settled before going to arbitration. ESQ and Birbrower had initially signed a contingent fee agreement in New York, but modified that agreement to a fixed fee contract before the parties finalized the settlement.17 The fixed fee was in excess of $1 million dollars.

16 Id, at 6. 17 Birbrower, Montalbano, Condon & Frank, P.C., 949 P.2d at 3-4.

Sometime after the settlement, ESQ sued Birbrower for malpractice and other related claims. Birbrower filed a counterclaim for attorneys’ fees for work performed in New York and California. ESQ argued the fee agreement was unenforceable because Birbrower had engaged in the UPL in California. The California trial court agreed, finding (i) none of the Birbrower attorneys were admitted in California, (ii) they had provided legal services in California, and (iii) under California law, “no one may recover compensation for services as an attorney at law in this state unless [the person] was at the time the services were performed a member of the State Bar.”18

On Birbrower’s appeal, the California Supreme Court agreed that Birbrower and its attorneys engaged in the UPL in California and could not recover fees for services performed in California. The Supreme Court, however, held that, to the extent Birbrower could demonstrate that it provided certain legal services ESQ in New York, Birbrower would be entitled to recover those fees.19

The California UPL statute at the time simply stated “No person shall practice law in California unless the person is an active member of the State Bar.”20 No MJP rule existed at the time. California has since adopted rules similar to Model Rules 5.5 and 8.5.

2. Claims for Damages by Third Parties

Out-of-state attorneys may find themselves subject to claims for damages by third parties. In Fogarty v. Parker, Poe, Adams and Bernstein, L.L.P., 961 So.2d 784 (Ala. 2006), as modified on denial of rehearing (Jan. 12, 2007), the plaintiffs, minority investors in a failed real estate venture in Alabama, brought a lawsuit against the North Carolina lawyers and their law firm that represented the venture’s majority shareholder and its individual shareholders. The counts against the lawyers and law firm included claims for: (i) the UPL, (ii) fraud, suppression, and misrepresentation, (iii) conspiracy to defraud and suppress, and (iv) violations of the Alabama LLC Act and Business Corporation Act for refusal to provide copies of the venture records.21 The Alabama Supreme Court refused to dismiss these counts against the lawyers and their firm, but did dismiss a number of other causes of action.22 In analyzing the UPL claims, the court cited the Alabama statute that makes it a misdemeanor to engage in the UPL in Alabama or to conspire with, aid or abet another person, firm, or

18 Id. at 4. 19 Id. at 12-13. 20 Id. at 2. 21 Fogarty, 961 So.2d 787. 22 Id. at 795.


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corporation commit the UPL.23 It also cited McMahon v. Advanced Title Services Co. of West Virginia, 607 S.E.2d 519 (W. Va. 2007), for the proposition that Alabama and many other states recognize a private cause of action for injuries caused by the UPL.24

The lesson is clear – disgruntled or dissatisfied investors may use an UPL claim as another avenue to recover investment losses from a failed venture. Whether they are successful depends on the state law where the out-of-state lawyer is practicing. 3. Malpractice Claims

Lawyers must be mindful of Model Rule 1.1 that requires a lawyer to “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.” If the lawyer knows or is concerned that the law of a state that governs a transaction may treat a certain legal issue differently, the lawyer is duty bound to investigate that issue and react accordingly. Acquiring knowledge of relevant law and using it are merely aspects of the professionalism that sophisticated clients expect and all clients are entitled. Moreover, Model Rule 1.4(b) obligates the lawyer to explain matters to the client to enable the client to make an informed decision about the representation.25 If the lawyer believes that there are limits on the lawyer’s ability to represent the client, the lawyer must inform the client so the client can decide how to proceed.

Lawyers should not accept a legal engagement unless they are able to properly represent the client. It is easy to see picture a lawyer representing a client in a malpractice claim against an out-of-state lawyer on a theory that “but for” the malpractice committed by the out-of-state lawyer of failing to include a term in the contract or loan document because the out-of-state lawyer was unfamiliar with the that state’s laws, the client suffered economic damages. 4. Disbarment or Censure by State Bar Licensing

Authorities Professional discipline is a common

admonishment for out-of-state attorneys found to have engaged in the UPL. When dealing with out-of-state attorneys, the conduct is usually fairly innocent and the attorney may not have even realized it ran afould of the UPL rules. In such cases, the professional admonishment is usually a reprimand. But in cases of a suspended or disbarred attorney engaging in the UPL, the punishment is usually a longer suspension or disbarment. This is not surprisingly given that licensing authorities generally view suspended or 23 Id. at 791. 24 Id. at 790-91. 25 Model Rule 1.4(b).

disbarred attorneys as a larger risk to the public than out-of-state attorneys in good-standing in their home-states. And because of the reciprocal rules, conduct in a foreign jurisdiction can result in reciprocal discipline in the lawyer’s home state.

5. Criminal Prosecution

The UPL is a criminal offense in every state. Depending on the particular state, the UPL may be a misdemeanor or felony, punishable by a fine or imprisonment – or both.

In Texas and Pennsylvania, for example, the first conviction for the UPL is a misdemeanor but subsequent convictions are felonies.26 In Louisiana, an individual convicted of the UPL can be fined up to $1,000 but a firm can be fined up to $5,000.27

These laws are most often used against non-attorneys engaging in the UPL, who are not subject to the disciplinary authority of state bar associations. But there are many cases of out-of-state attorneys being criminally prosecuted for having engaged in the UPL. III. MULTIJURISDICTIONAL PRACTICE

RULES A. Traditional MJP Rules (or Lack Thereof)

From 1983 to 2002, ABA Model Rule 5.5 provided, in full, as follows:

Rule 5.5 Unauthorized Practice of Law 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.

As the modern practice of law evolved, this definition became increasingly inadequate and unrealistic – so much so that it needed a major overhaul by the end of the 20th century to address the multijurisdictional practice of law. B. Modern MJP Rules – ABA Model Rules 5.5

and 8.5 In 2000, following the Birbrower and similar

decisions, the ABA appointed the Commission on Multijurisdictional Practice (“MJP Commission”).28 The MJP Commission’s tasks were:

26 TX Penal Code § 38.123; PA Cons. Stat. §2524. 27 LA Rev. Stat. 37:213. 28 American Bar Association, Report of the Commission on Multijurisdictional Practice, August 2002, at 4.


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(1) research, study and report on the application of current ethics and bar admission rules to the multijurisdictional practice of law;

(2) analyze the impact of those rules on the practice of in-house counsel, transactional lawyers, litigators and arbitrators and on lawyers and law firms maintaining offices and practicing in multiple state and federal jurisdictions;

(3) make policy recommendations to govern the multijurisdictional practice of law that serve the public interest and take any other actions as may be necessary to carry out its jurisdictional mandate; and

(4) review international issues related to multijurisdictional practice in the U.S.29

The MJP Commission found that the trend toward “globalization of business and finance [has meant] clients sometimes now need lawyers to assist them in transactions in multiple jurisdictions (state and national) or to advise them about multiple jurisdictions’ laws.”30 Despite this evolution in client needs and legal practice, the MJP Commission noted there was a concern that the regulation of lawyers had not yet responded effectively. As a result, it was becoming “increasingly uncertain when a lawyer’s work (other than a trial lawyer in court)” would constitute the UPL in a jurisdiction other than where the lawyer was licensed to practice.31 The ABA House of Delegates adopted the MJP Commission’s recommendations in 2002, which resulted in significant amendments to Model Rules 5.5 (UPL; MJP) and 8.5 (Disciplinary Authority; Choice of Law).

1. Model Rule 5.5 – UPL; MJP of Law

New Model Rule 5.5(a) still prohibits attorneys from practicing in other jurisdictions where doing so would violate the legal profession’s regulation in that jurisdiction. For the oil and gas attorney, this means that, before becoming involved in a transaction or with a client in another state, a lawyer should consider researching that state’s UPL rules.

New Model Rule 5.5(b) is substantially changed. It prohibits an out of state lawyer from (1) establishing an office or another “systematic and continuous presence in this jurisdiction for the practice of law” or (2) “hold[ing] out to the public or otherwise represent[ing] that the lawyer is admitted to practice law in this jurisdiction.” One does not need to be

29 Id. 30 Id. at 3. 31 Id..

physically present in a state to have a systematic and continuous presence.32

New Model Rule 5.5(c) allows an out-of-state lawyer that has not been disbarred or suspended in any jurisdiction to provide legal services on a “temporary basis” in the foreign state under four circumstances:

(1) those services are undertaken in association

with a lawyer that is admitted in the jurisdiction who actively participates in the matter – the so-called “local counsel” exception; or

(2) the services are in or reasonably related to a pending or potential proceeding before a tribunal that has authorized the lawyer to appear in such proceeding (or in assisting someone who is so admitted) – the so-called “pro hac vice” exception; or

(3) the services are in or reasonably related to a pending or potential arbitration, mediation or other ADR, and the services are reasonably related to the lawyer’s home-state practice and pro hac vice admission is not required; or

(4) the lawyer’s services are not covered by either (2) or (3) but arise out of or are reasonably related to the lawyer’s home-state practice.

(emphasis added)

Out-of-state oil and gas attorneys involved in a transaction involving properties in a state that has adopted Model Rule 5.5 are most likely to rely on exceptions (1) and (4) to avoid the UPL.

What constitutes rendering legal services on a “temporary basis” that “arise out of or are reasonably related to the lawyer’s [home-state] practice” is not particularly clear. Comment 6 to Model Rule 5.5 provides only:

There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

Comment 14 to Model Rule 5.5 provides a few examples of what type of practice outside the state could be reasonably related to the lawyer’s home-state, such as (i) the lawyer’s previous representation 32 Model Rule 5.5, Comment 4.


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of the client, (ii) residency, or (iii) substantial contacts within the state. These are only examples, however, and there is no “bright line” or “safe harbor” on which an out-of-state attorney may rely.33

Model Rule 5.5(d) provides for similar rights to an out-of-state in-house attorney to provide non-litigation services. It also allows an out-of-state attorney to provide services governed by federal law (e.g., patent bar attorneys pursuing a patent prosecution matter).

2. Model Rule 8.5 – Disciplinary Authority; Choice

of Law Model Rule 8.5(a) provides that any lawyer

admitted to practice in the jurisdiction is subject to that jurisdiction’s disciplinary authority regardless of where the lawyer’s conduct occurs. Similarly, a lawyer not admitted in the jurisdiction is still subject to the jurisdiction’s authority if the lawyer provides or offers to provide legal services in the jurisdiction. The same conduct can subject the lawyer to the disciplinary authority of the home and foreign states.

Model Rule 8.5(b) addresses the choice of law the jurisdiction’s disciplinary authority will apply. For conduct in a matter pending before a tribunal, the rules of the jurisdiction where the tribunal sits will apply, unless the tribunal’s rules provide otherwise. For any other conduct, the rules of the jurisdiction where the conduct occurred will apply; unless the conduct’s predominant effect is in a different jurisdiction. If so, the rules of the jurisdiction where the predominant effect occurs will apply.34

Model Rule 8.5(b)(2) states the following overarching principle on the choice of law issue:

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.

Because a lawyer’s conduct may involve significant contacts with multiple jurisdictions, the Rule’s intent is to provide “protection from discipline for lawyers who act reasonably in the face of uncertainty.”35 Also, where the lawyer’s conduct involves significant contacts with multiple jurisdictions, Comment 5 indicates the intent that if two different jurisdictions proceed against a lawyer, they should, apply the same governing ethical rules.

In tandem with Model Rule 5.5, Model Rule 8.5 clarifies that the out-of-state lawyer is subject to the disciplinary authority of both the home and foreign 33 Johnson, supra note 1, at 17. 34 Id. at 18. 35 Johnson, supra note 1, at 19.

states. And Model Rule 8.5 also clarifies which jurisdiction’s professional responsibility rules will apply. C. State Adoptions and Variations of Model

Rules 5.5 and 8.5 Two charts attached as Appendix A and

Appendix B to this paper contain an update as of September 27, 2011 as to the status of the consideration and adoption of Model Rules 5.5 and Model Rule 8.5 in all 50 states and the District of Columbia.

As of September 27, 2011, 45 jurisdictions had adopted Model Rule 5.5 or a similar version, and two more had a recommendation to adopt the same or a similar version pending in their highest courts. And as of September 27, 2011, 45 jurisdictions had adopted Model Rule 8.5 or a similar version and two states had recommendations to adopt the same ro a similar version before their highest courts. Of the remaining states, all but one either have committees studying these two new Model Rules or have study committees that already recommended adoption of the new Rules and final action is pending. Kansas is the only exception.

In Kansas, no study is underway and the old version of Model Rule 5.5 remains in place. The Kansas Rule 8.5 states: “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.”

A chart entitled “State Implementation of ABA MJP Policies” that can be found on the ABA website at http://www.abanet.org/cpr/mjp/recommedations.pdf contains other more detailed information on all of the states and all of the ABA’s MJP policies – (i) Model Rule 5.5; (ii) Model Rule 8.5; (iii) Pro Hac Vice Admission; (iv) Admission by Motion; (v) Foreign Legal Consultants; and (vi) Temporary Practice by Foreign Lawyers. 1. Texas

Texas is one of the few states that has not yet adopted the revised Model Rule 5.5 governing multijurisdictional practice, although it likely will soon. But for now, Texas Rule 5.5 is essentially the same as the prior Model Rule 5.5. Even so, the Professional Ethics Committee for the State Bar of Texas seems to give significant weight to Model Rule 5.5’s expansive allowance of the MJP of law. This is seen in various opinions that cite to the present uncertainty as to exactly what would constitute the UPL in Texas in the case of MJP, and then go on to

http://www.abanet.org/cpr/mjp/recommedations.pdf


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use the same principles expounded in Model Rule 5.5.36

2. Colorado

Colorado has gone even further than Model Rule 5.5 and in 2003 adopted the most expansive rule allowing out-of-state attorneys to practice in the state. Colorado Rule of Civil Procedure Rule 220 provides:

(1) An attorney who meets the following

conditions is an out-of-state attorney for the purpose of this rule:

(a) The attorney is licensed to practice law

and is on active state in another jurisdiction in the United States;

(b) The attorney is a member in good standing of the bar of all courts and jurisdictions in which he or she is admitted to practice;

(c) The attorney has not established domicile in Colorado; and

(d) The attorney has not established a place for the regular practice of law in Colorado from which such attorney holds himself or herself out to the public as practicing Colorado law or solicits or accepts Colorado clients.

(2) An out-of-state attorney may practice law in

the state of Colorado except that an out-of-state attorney who wishes to appear in any state court of record must comply with C.R.C.P. 221 regarding pro hac vice admission and an out-of-state attorney who wishes to appear before any administrative tribunal must comply with C.R.C.P. 221.1 concerning pro hac vice admission before state agencies.

(3) An out-of-state attorney practicing under this law is subject to the Colorado Rules of Professional Conduct and rules of procedure regarding attorney discipline proceedings and those remedies set forth in C.R.C.P. 234(a).

(4) An out-of-state attorney who engages in the practice of law in Colorado pursuant to Rule 220 shall be deemed, for purposes of Colorado Revised Statutes … to have obtained a license for the limited scope of practice specified by this rule.

By adopting such a rule, Colorado wisely distinguished out-of-state attorneys from laypersons 36 See Opinion No. 597, Professional Ethics Committee for the State Bar of Texas (May 2010).

for purposes of its UPL rules. And this seems to have worked well since 2003 – protecting the public but also making it easier for attorneys and clients to conduct their businesses. IV. EXAMPLES OF MULTIJURISDICTIONAL

CONDUCT37 A. Litigation Practice Questions 1. A Texas lawyer has a Texas-based client that asks her to analyze its position in a dispute about an acquisition of Texas assets from another company located out of state, under a contract providing for the application of another state’s law. May Texas lawyer advise client about the validity of its legal position under the other state’s law? 2. Texas lawyer has a Texas-based client that has a dispute with a company from another state. May Texas lawyer send demand letters and statements of client’s position to the adversary in another state? 3. Texas lawyer’s Texas-based client has a dispute with a company from another state. A negotiation meeting is arranged between client and its adversary and their lawyers at the office of the adversary. May Texas lawyer attend to represent client without local counsel? 4. Texas lawyer’s Texas-based client is sued in another jurisdiction where it has an office. May Texas lawyer go into that jurisdiction to perform some preliminary investigation, while local counsel is being arranged and before admission pro hac vice in the other jurisdiction? 5. Texas lawyer represents client in a matter in a Texas court. A third-party witness to be deposed resides in another state and that her deposition can only be taken in that state. May Texas lawyer attend deposition without local counsel? 6. Texas lawyer represents client in a dispute with another entity. Pursuant to contract the matter is to be arbitrated. The parties agree upon an arbitrator and that the arbitration will be conducted at a neutral site where the arbitrator is located, in a state having nothing to do with the underlying dispute. May Texas

37 These questions are inspired by: Mark D. Hinderks, On the Proper State of Things: Multijurisdictional Practice for the Kansas Practitioner, 74 J. Kan. B.A. 20 (Feb. 2005). For these examples, I have assumed that Texas has adopted the new Model Rule 5.5. As discussed above in III.C.1, this is likely to happen soon. Practically speaking, the Texas professional ethics authorities already appear to be impliedly operating under the new Model Rule 5.5.


8

lawyer participate in the arbitration without local counsel? 7. Law firm hires an experienced lawyer from another state to lead a new energy litigation practice group. The lawyer moves to Texas in February, unable to be admitted to the Texas bar upon examination until November. Until she is admitted, may she practice as a lawyer from the firm’s office in Texas, using other lawyers of the firm as local counsel? B. Litigation Practice Answers

1-4. Problems one through four above present scenarios of ever-increasing activity in another jurisdiction by a Texas lawyer in connection with representation of a Texas client. Each of these scenarios would most likely be found to be acceptable incidental involvement with the foreign jurisdiction under the new Model Rule 5.5, either because specifically provided for or because the activities could be determined to “arise out of or be reasonably related to” the lawyer’s in-state practice for a Texas client. In jurisdictions that have not adopted new Model Rule 5.5, black letter answers are less clear, although modern practice would leave little doubt that these types of incidental activities are commonly considered as appropriate in most jurisdictions.38

5. For the same reasons, problem five, involving an in-state case, does not appear to implicate any interest of the foreign state, and should also be acceptable. However, intervention of a foreign court to secure process or resolve a discovery dispute would probably require local counsel or pro hac vice admission.

6. Problem six is somewhat more complex. Although it involves an in-state entity, it contemplates an arbitration proceeding entirely based in a foreign state. If this were a court proceeding, all states would require the out-of-state attorney to become admitted temporarily (pro hac vice) with local counsel. In this example, however, there does not appear to be any foreign state interest in the arbitration proceeding given that the parties arbitrarily picked the location. This activity would most likely be acceptable under new Model Rule 5.5(c)(3), as involvement in a proceeding elsewhere without requirement for admission pro hac vice, arising out of the lawyer’s in-state practice. 7. Problem seven probably has the clearest answer. Even under the new Model Rule 5.5, a lawyer may not regularly maintain an office and practice in a foreign 38 See Opinion No. 597, Professional Ethics Committee for the State Bar of Texas (May 2010).

state. The lawyer would have to function as a law clerk, performing limited duties under the supervision of licensed attorneys, or seek a limited license to practice if allowed in that particular jurisdiction.

C. Transactional Practice Questions 1. Texas lawyer is asked for an opinion letter about the enforceability of a contract provision under the law of another state. May she provide that opinion without local counsel from that other state? 2. Texas lawyer’s Texas-based client asks her to represent it in negotiating an acquisition of Texas assets from another company located out-of-state. May Texas lawyer communication by letter, phone, and e-mail with the other company’s out-of-state counsel in negotiating the transaction? 3. Texas lawyer’s Texas-based client asks her to represent it in negotiating an acquisition of Texas assets from another company located out-of-state. May Texas lawyer attend negotiating sessions and closing in another state? 4. Texas lawyer has an existing client based in another state that asks her to represent it in negotiating a sale of a oil and gas assets in five states, including Texas, because of Texas lawyer’s particular expertise in that type of transaction. May Texas lawyer communicate by letter, phone, and email with the other company’s out-of-state counsel in negotiating the transaction? 5. May Texas lawyer representing the client in the question above attend negotiating sessions and a closing in another state? 6. Texas lawyer and her Texas-based client are in an airport on the East Coast awaiting a connecting flight. Client asks for advice on a matter of Texas law. May lawyer answer or must she wait until they are back on Texas soil? 7. Law firm has an office in a neighboring state. In connection with a large transaction for a client, may four of its transactional lawyers licensed in Texas report to the neighboring state office for a month to do due diligence? 8. Law firm maintains a website accessible to potential clients in all 50 states. May it represent that it has expertise in various types of transactional matters even though it does not have lawyers licensed in the other states?


9

D. Transactional Practice Answers 1-3. Problems one through three present various scenarios about a Texas transactional lawyer performing work for a Texas-based client with either no activity in another state, only “virtual” activity in another state, or limited physical activity in another state. These limited activities do not appear to violate existing views of MJP. Additionally, they would clearly be proper under the new Model Rule 5.5, as arising out of the lawyer’s in-state practice. 4-5. Problems four and five add the additional wrinkle that the client is not based in the lawyer’s home-state. On the one hand, that creates a disconnect between the matter and the lawyer’s home-state. On the other hand, the problem is also put forth as a multistate matter, to which the lawyer’s home-state does have some connection, and the lawyer has represented the client previously and already has a relationship. Although the answer is not very clear under the existing rules, the Comments to new Model Rule 5.5 suggest that the connection may be enough to satisfy the new standard in these circumstances. 6. Problem six is the hyper-technical situation of Texas lawyer and Texas client passing through another jurisdiction discussing a Texas problem. There does not appear to be any authority suggesting that this would violate existing rules (the state of transition would have no interest in the matter), and it would certainly be permissible under the “arising out of” language of new Model Rule 5.5. 7. Problem seven tests the limits of what may be considered incidental or temporary activity under the new Model Rule 5.5. It would be difficult to justify this level of involvement in a foreign jurisdiction (essentially officing there) under existing rules. New Model Rule 5.5 provides that a lawyer may not “establish an office or other systematic and continuous presence” in a jurisdiction where not licensed. Whether these facts would be interpreted as establishing an office or other systematic and continuous presence, or as providing “legal services on a temporary basis,” is unclear. 8. Problem eight is probably more a question concerning law firm advertising than one of MJP. However, there is an intersection with MJP in connection with determining the truth and utility of any such website statement – the firm cannot advertise an expertise that it cannot provide because of licensing issues. In this connection, at least so long as the statement does not state or imply that the lawyers can handle matters in other states that would be

prohibited by law, the statement is acceptable – there are at least some contexts in which the firm could offer transactional services relating to foreign states and foreign states’ law, as previously discussed. Of course, as the safest course of action, in describing its lawyers, the firm should indicate their states of licensure, or at least not make any statements about an ability to handle matters requiring licensure where its lawyers are not licensed. V. RECOMMENDATIONS

Multijurisdictional issues in oil and gas practices are here to stay. These ethical issues will require each lawyer to seriously evaluate the lawyer’s competency and ethical obligations not to engage in the UPL. Most states have adopted all or most of the new ABA Model Rules 5.5 and 8.5, but it may be several more years before these rules’ full consequences are understood or addressed by case law or ethical opinions.

A. Advise Your Client You Are Not Admitted in

the Jurisdiction. A lawyer should always advise the client if the

lawyer is not admitted in the jurisdiction where the client is planning a transaction. Some states’ MJP rules require such a disclosure and Comment 20 to Model Rule 5.5 shows the prudence in this disclosure:

In some circumstances, a lawyer who practices in this law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the laws of this jurisdiction. See Rule 1.4(b).39

If you were the client, wouldn’t you expect your attorney to at least inform you if he or she was not licensed in a particular jurisdiction that concerned the representation? B. Recommend Engagement of Local Counsel.

When a client wishes to engage a lawyer for a significant transaction in a foreign state, unless the lawyer’s firm has competent practitioners admitted in that jurisdiction, the lawyer should seriously consider engaging local counsel to work with the lawyer on the transaction. Under Model Rule 1.4, this recommendation should be made to and discussed 39 Model Rule 1.4(b) provides, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”


10

with the client. In significant transactions or those with technical, local issues, the lawyer and the client may be “penny wise and pound foolish” not to engage local counsel.

Engaging local counsel is not enough; the local counsel must be actively involved to meet the Model Rule 5.5(c)(1) exception to UPL. Because not all states have adopted Model Rule 5.5 or have adopted it with some alterations, a lawyer should verify the ethical rules where the transactions will take place or effect.

C. Review the MJP and UPL Rules of All

Jurisdictions Involved in a Particular Matter. While most jurisdictions have adopted MJP rules

that are the same or very similar to new Model Rule 5.5, there are dozens of subtle differences. Because the consequences of running afoul of these rules can be so severe, reviewing these rules – just to be safe – will be time well spent (like an insurance policy on your ability to recover your fees).

D. Consider Seeking Admission to the Foreign

Jurisdiction’s Bar. If a lawyer’s clients are repeatedly engaged in

significant transactions in another jurisdiction, the lawyer may need to look into seeking admission in that jurisdiction. How difficult or possible that will be depends on that jurisdiction’s admission and reciprocity rules. The MJP rules generally only allow temporary practices; they prohibit “systematic and continuous” practices.

To aid an out-of-state attorney considering whether to seek admission to another jurisdiction, a chart attached as Appendix C to this paper details the Admission by Motion (reciprocity) rules of all the states. An attorney should contact the state’s bar admission authority for the specific details but this chart sets forth the general years of practice and test score requirements for admission by reciprocity, if allowed.


11

APPENDIX A

State Implementation of ABA Model Rule 5.5 (Multijurisdictional Practice of Law)

Sept

embe

r 27

, 201

1 ©

201

1 A

mer

ican

Bar

Ass

ocia

tion

ST

AT

E IM

PLE

ME

NT

AT

ION

OF

AB

A M

OD

EL

RU

LE

5.5

(M

UL

TIJ

UR

ISD

ICT

ION

AL

PR

AC

TIC

E O

F L

AW

)

H

ighe

st

Cou

rt h

as

adop

ted

a ru

le id

entic

al

to A

BA

M

odel

Rul

e 5.

5

(13)

Hig

hest

C

ourt

has

ad

opte

d a

rule

sim

ilar

to A

BA

M

odel

Rul

e 5.

5

(31)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le id

entic

al to

A

BA

Mod

el R

ule

5.5

(0

)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le si

mila

r to

A

BA

Mod

el R

ule

5.5

(1

)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le id

entic

al to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le si

mila

r to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es th

at

have

cre

ated

co

mm

ittee

s to

stud

y A

BA

M

JP r

ecom

-m

enda

tions

(3)

AL

X

AK

X

AZ

X

AR

X

CA

X

CO

X

CT

X

DE

X

DC

X

(Rul

e 49

, D.C

. C

t. of

App

s.)

FL

X

GA

X

Eth

ics O

f Mul

tijur

isdi

ctio

nal P

ract

ice

Cha

pter

11

12

H

ighe

st

Cou

rt h

as

adop

ted

a ru

le id

entic

al

to A

BA

M

odel

Rul

e 5.

5

(13)

Hig

hest

C

ourt

has

ad

opte

d a

rule

sim

ilar

to A

BA

M

odel

Rul

e 5.

5

(31)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le id

entic

al to

A

BA

Mod

el R

ule

5.5

(0

)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le si

mila

r to

A

BA

Mod

el R

ule

5.5

(1

)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le id

entic

al to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le si

mila

r to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es th

at

have

cre

ated

co

mm

ittee

s to

stud

y A

BA

M

JP r

ecom

-m

enda

tions

(3)

HI

X

ID

X

IL

X

IN

X

IA

X

KS

KY

X

LA

X

ME

X

MD

X

MA

X

MI

X

MN

X

MS

X

MO

X

MT

NE

X

Eth

ics O

f Mul

tijur

isdi

ctio

nal P

ract

ice

Cha

pter

11

13

H

ighe

st

Cou

rt h

as

adop

ted

a ru

le id

entic

al

to A

BA

M

odel

Rul

e 5.

5

(13)

Hig

hest

C

ourt

has

ad

opte

d a

rule

sim

ilar

to A

BA

M

odel

Rul

e 5.

5

(31)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le id

entic

al to

A

BA

Mod

el R

ule

5.5

(0

)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le si

mila

r to

A

BA

Mod

el R

ule

5.5

(1

)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le id

entic

al to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le si

mila

r to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es th

at

have

cre

ated

co

mm

ittee

s to

stud

y A

BA

M

JP r

ecom

-m

enda

tions

(3)

NV

X

NH

X

NJ

X

NM

X

NY

X

NC

X

ND

X

OH

X

OK

X

OR

X

PA

X

RI

X

SC

X

SD

X

Eth

ics O

f Mul

tijur

isdi

ctio

nal P

ract

ice

Cha

pter

11

14

H

ighe

st

Cou

rt h

as

adop

ted

a ru

le id

entic

al

to A

BA

M

odel

Rul

e 5.

5

(13)

Hig

hest

C

ourt

has

ad

opte

d a

rule

sim

ilar

to A

BA

M

odel

Rul

e 5.

5

(31)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le id

entic

al to

A

BA

Mod

el R

ule

5.5

(0

)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le si

mila

r to

A

BA

Mod

el R

ule

5.5

(1

)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le id

entic

al to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es w

hose

M

JP st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

ru

le si

mila

r to

A

BA

Mod

el

Rul

e 5.

5 (0)

Stat

es th

at

have

cre

ated

co

mm

ittee

s to

stud

y A

BA

M

JP r

ecom

-m

enda

tions

(3)

T

N

X

TX

X

UT

X

VT

X

VA

X

WA

X

WV

Doe

s not

add

ress

M

JP.

http

://w

ww

.stat

e.w

v.u

s/W

VSC

A/ru

les/

AB

A.p

df

WI

X

WY

X

Cop

yrig

ht ©

201

1 A

mer

ican

Bar

Ass

ocia

tion.

All

righ

ts r

eser

ved.

Not

hing

con

tain

ed i

n th

is c

hart

is

to b

e co

nsid

ered

the

re

nder

ing

of le

gal a

dvic

e. T

he c

hart

is in

tend

ed fo

r ed

ucat

iona

l and

info

rmat

iona

l pur

pose

s on

ly.

We

mak

e ev

ery

atte

mpt

to

keep

the

cha

rt a

s ac

cura

te a

s po

ssib

le. I

f yo

u ar

e aw

are

of a

ny i

nacc

urac

ies

in t

he c

hart

, ple

ase

send

you

r co

rrec

tions

or

addi

tions

and

the

sour

ce o

f tha

t inf

orm

atio

n to

Joh

n H

olta

way

, (31

2) 9

88-5

298,

john

.hol

taw

ay@

amer

ican

bar.

org

Eth

ics O

f Mul

tijur

isdi

ctio

nal P

ract

ice

Cha

pter

11

15

http://www.state.wv.us/WVSCA/rules/ABA.pdf



mailto:[email protected]


17

APPENDIX B

State Implementation of ABA Model Rule 8.5 (Disciplinary Authority; Choice of Law)

Oct

ober

27,

201

0 ©

201

0 A

mer

ican

Bar

Ass

ocia

tion

ST

AT

E IM

PLE

ME

NT

AT

ION

OF

AB

A M

OD

EL

RU

LE

8.5

(D

ISC

IPL

INA

RY

AU

TH

OR

ITY

; CH

OIC

E O

F L

AW

)

Hig

hest

Cou

rt

has a

dopt

ed a

ru

le id

entic

al to

A

BA

Mod

el R

ule

8.5

(24)

Hig

hest

Cou

rt

has a

dopt

ed a

ru

le si

mila

r to

A

BA

Mod

el R

ule

8.5

(21)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le id

entic

al to

A

BA

Mod

el R

ule

8.5

(0)

Rec

omm

enda

tion

pend

ing

in

high

est C

ourt

to

adop

t a r

ule

sim

ilar

to A

BA

M

odel

Rul

e 8.

5 (1)

Stat

es w

hose

MJP

st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

rul

e id

entic

al to

AB

A

Mod

el R

ule

8.5

(1)

Stat

es w

hose

M

JP st

udy

com

mitt

ees h

ave

reco

mm

ende

d ad

optio

n of

a r

ule

sim

ilar

to A

BA

M

odel

Rul

e 8.

5 (0

)

Stat

es th

at h

ave

crea

ted

com

mitt

ees

to st

udy

AB

A M

JP

reco

mm

enda

tions

(3)

AL

X

AK

X

AZ

X

AR

X

CA

X

CO

X

CT

X

DE

X

DC

X

FL

X

GA

X

HI

X

Eth

ics O

f Mul

tijur

isdi

ctio

nal P

ract

ice

Cha

pter

11

18

H

ighe

st C

ourt

ha

s ado

pted

a

rule

iden

tical

to

AB

A M

odel

Rul

e 8.

5

(2

4)

Hig

hest

Cou

rt

has a

dopt

ed a

ru

le si

mila

r to

A

BA

Mod

el R

ule

8.5

(21)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

ado

pt a

ru

le id

entic

al to

A

BA

Mod

el R

ule

8.5

(0)

Rec

omm

enda

tion

pend

ing

in

high

est C

ourt

to

adop

t a r

ule

sim

ilar

to A

BA

M

odel

Rul

e 8.

5 (1)

Stat

es w

hose

MJP

st

udy

com

mitt

ees

have

re

com

men

ded

adop

tion

of a

rul

e id

entic

al to

AB

A

Mod

el R

ule

8.5

(1)

Stat

es w

hose

M

JP st

udy

com

mitt

ees h

ave

reco

mm

ende

d ad

optio

n of

a r

ule

Stat

es th

at h

ave

crea

ted

com

mitt

ees

to st

udy

AB

A M

JP

reco

mm

enda

tions

sim

ilar

to A

BA

Mod

el R

ule

8.5

(0

) (3

) ID

X

ILX

IN

X

IAX

KS

KY

X

LA

X

ME

X

MD

X

MA

X

MI

X

MN

X

MS

X

MO

X

Eth

ics O

f Mul

tijur

isdi

ctio

nal P

ract

ice

Cha

pter

11

19

H

ighe

st C

ourt

ha

s ado

pted

a

rule

iden

tical

to

AB

A M

odel

Rul

e 8.

5

(2

4)

Hig

hest

Cou

rt

has a

dopt

ed a

ru

le si

mila

r to

A

BA

Mod

el R

ule

8.5

(21)

Rec

omm

enda

tion

pend

ing

in h

ighe

st

Cou

rt to

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23

APPENDIX C

State Rules on Admission to the Bar by Motion (Reciprocity)

CHART 10: Admission on Motion 35

CHART 10: Admission on Motion

Do your rules provide for admission on motion?

What is the number of years of practice required for

admission on motion?

Your definition of practice for purposes of admission on motion includes:

Must an applicant for admission on

motion be a graduate of an ABA-approved

law school?

Jurisdiction Yes NoLaw

teachingGov’t

agency MilitaryIn-house corporate

Judicial court of record Yes No

Alabama X 5 of past 6 X X X X X XAlaska X 5 of past 7 X X X X X XArizona X 5 of past 7 X X X X XArkansas X 5 of past 7 X X X X X XCalifornia XColorado X 5 of past 7 X X X X X XConnecticut X 5 of past 7 X X X X X XDelaware XDist. of Columbia X None XFlorida XGeorgia X 5 of past 7 X X X X X XHawaii X* X XIdaho X 3 of past 5 X X X X X XIllinois X 5 of past 7 X X X X X XIndiana X 5 of past 7 X X X X X XIowa X 5 of past 7 X X X X X XKansas X 5 of past 7 X X X X X XKentucky X 5 of past 7 X X X X X XLouisiana XMaine X* Preceding 3 X X X X X XMaryland XMassachusetts X 5 of past 7 X X X X X XMichigan X 3 of past 5 X X X X X XMinnesota X 5 of past 7 X X X X X XMississippi X 5 X X X X X XMissouri X 5 of past 10 X X X X X XMontana XNebraska X Varies X X X X XNevada X X X X XNew Hampshire X 5 of past 7 X X X X X XNew Jersey X* X X XNew Mexico XNew York X 5 of past 7 X X X X X XNorth Carolina X 4 of past 6 X X X X X XNorth Dakota X 4 of past 5 X X X X X XOhio X 5 of past 10 X X X X X XOklahoma X 5 of past 7 X X X X X XOregon X 5 of past 7 X X X X X XPennsylvania X 5 of past 7 X X X X X XRhode Island XSouth Carolina X* X XSouth Dakota X Past 5 X X X X XTennessee X 5 of past 7 X X X X X XTexas X 5 of past 7 X X X X X XUtah X Varies X X X X X XVermont X 5 of past 10 X X X XVirginia X 5 of past 7 X X X X XWashington X Varies X X X X XWest Virginia X 5 of past 7 X X X X XWisconsin X 3 of past 5 X X X X X XWyoming X 5 of past 7 X X X X XGuam X* X XNorthern Mariana Islands XPalau X* XPuerto Rico XVirgin Islands X* X X

*Although admission on motion is generally unavailable, it is permitted on a limited basis. See supplemental remarks.

Note: As used in this chart, “on motion” denotes admission without any additional testing except, where required, the MPRE.


24

36 Comprehensive Guide to Bar Admission Requirements 2011

CHART 10: Admission on Motion (Supplemental Remarks)

Do your rules provide for admission on motion?

Alabama Effective in September 2006, a lawyer who actively practiced 5 of the past 6 years who be-comes a permanent resident or certifies the inten-tion to maintain and conduct the primary practice of law may be admitted without examination.

Arizona Arizona began admission on motion in 2010. Must have actively practiced 5 of past 7 years, at least 1,000 hours each year, and held an active law license in good standing for that duration. Profes-sorship recognition requires full-time law school professorship. Active practice cannot have con-stituted unauthorized practice where it occurred. Applicant must have been admitted by bar exami-nation in a reciprocal jurisdiction to qualify. Appli-cant may not have failed the Arizona bar exami-nation within past 5 years. Prior members of the State Bar of Arizona are not eligible for admission on motion.

District of Columbia Attorney who has been a mem-ber in good standing of the bar for 5 years; or at-torney, with J.D. from ABA-approved law school, admitted by examination in jurisdiction, having at-tained 133 scaled MBE score and 75 scaled MPRE score, can be admitted without examination.

Hawaii Full-time faculty members at the University of Hawaii Law School who graduated from an ABA-approved law school and who have been admitted to practice in another U.S. jurisdiction are eligi-ble. In addition, full-time active-duty uniformed- service judge advocates may apply for limited ad-mission without examination to represent, without additional compensation, certain active-duty en-listed military personnel and their dependents.

Iowa Applicants who have failed 5 or more bar exami-nations are not eligible for admission on motion.

Maine Motion admission is currrently available to at-torneys from New Hampshire and Vermont only.

Nevada Admission on motion is unavailable. Admis-sion by certification is allowed for faculty of the National Judicial College, Boyd Law School, in-house corporate, and some government agencies.

New Jersey Law professors who have taught law full-time for the previous 5 years at 1 of the 3 New Jersey law schools can be admitted on mo-tion. In addition, the law professor must have a J.D. or LL.B. degree from an ABA-approved law

school and be admitted by examination in at least 1 other U.S. jurisdiction. In-house counsel appli-cants should refer to rule pertaining to admission to practice.

North Dakota If application is based on MBE scaled score of 150 or above and admission in the jurisdic-tion of examination, active practice not required. Evidence of MBE score and completed application must be received within 2 years of the exam date.

South Carolina Admission on motion only for dean or a tenured professor of the University of South Carolina School of Law.

Virginia An applicant must intend, promptly after be-ing admitted to practice in Virginia without exami-nation, to establish his or her office in Virginia and to practice full-time from such Virginia office.

Washington Limited license for representation of mil-itary personnel only. All other motion applicants are admitted on the basis of reciprocity with state of origin.

Guam Only government attorneys may be admitted temporarily without written examination and only for the purposes of government employment. Gov-ernment attorneys applying for temporary admis-sion must still undergo a character and fitness in-vestigation. Attorneys admitted under this rule are only granted temporary admission for a maximum of 5 years.

Northern Mariana Islands Government attorneys may be admitted temporarily without written ex-amination and only for the purposes of government employment. Government attorneys applying for temporary admission must still undergo a character and fitness investigation. Attorneys admitted under this rule are only granted temporary admission for a maximum of 4 years.

Virgin Islands On motion of authorized departments or agencies, an attorney may be specially admitted to practice law before the VI Supreme Court and the Superior Court, without written examination and as an employee of the department or agency. Once admitted, the specially admitted government attorney must take the Virgin Islands Bar Exam within 2 years and pass within 3 years; otherwise the special admission automatically expires.

What is the number of years of practice required for admission on motion?

Massachusetts Board requires proof that the appli-cant has been actively engaged in the practice of


25

CHART 10: Admission on Motion 37

CHART 10: Admission on Motion (Supplemental Remarks, continued)

law for 5 out of the past 7 years immediately pre-ceding the application.

Minnesota Applicant must have been actively and lawfully engaged in the practice of law for at least 5 of the 7 years immediately preceding the applica-tion. The practice of law professors, military law-yers and federal government lawyers which takes place outside a state where licensed is considered the lawful practice of law. Practice which occurs outside of a jurisdiction where licensed is also con-sidered the lawful practice of law so long as such practice is authorized by the jurisdiction in which the practice takes place.

Mississippi Practice requirement is determined by the applicant’s originating jurisdiction with a mini-mum of 5 years of active practice in the originating jurisdiction in which the applicant was licensed and in good standing.

Nebraska Admission without examination if applicant has actively practiced law 5 of 7 years preceding application, and has received his/her first profes-sional degree from an ABA-approved law school. Or admission without examination if applicant has passed a bar examination equivalent to Nebraska exam, was admitted to practice, and has first degree from an ABA-approved law school.

New Hampshire Lawyers from Maine and Vermont may be admitted after 3 years of practice; all other lawyers must have practiced 5 of past 7 years.

Utah Practice requirement is determined by the ap-plicant’s originating jurisdiction with a minimum of 3 years of practice in the originating jurisdic-tion during the 4 years preceding the filing of the application.

Vermont Lawyers from New Hampshire and Maine may be admitted after 3 years of practice; all other lawyers must have practiced 5 of the past 10 years unless current jurisdiction requires fewer than 5 years.

Washington Both the length of active practice and the type of practice permitted are determined by the re-quirements of the applicant’s originating jurisdic-tion. Motion applicants must show that they have the same length and type of practice that would be required of applicants from Washington who seek admission in the originating jurisdiction.

West Virginia Rules are silent as to whether in-house corporate experience qualifies as active practice of law.

Wisconsin Applicants who failed the Wisconsin bar exam are not eligible for admission on motion.

Wyoming Has engaged in the active, authorized prac-tice of law for a minimum of 300 hours per year for 5 of 7 years immediately preceding the date of the application.

Must an applicant for admission on motion be a graduate of an ABA-approved law school?

Connecticut Must be a graduate of a law school ap-proved by bar examining committee.

Indiana Effective January 1, 2009, graduation from an ABA-accredited law school is no longer required of applicants for a Business Counsel License. Gradu-ation from an ABA-accredited law school is still required of applicants for a Provisional License.

Maine Law school graduates from English-speaking common-law countries may be eligible subject to an equivalency evaluation.

Massachusetts Must be ABA-approved or authorized by a state statute to grant the degree of bachelor of laws or J.D. at the time of graduation.

Michigan Applicant must have a J.D. from a reputable and qualified law school. Law schools fully or pro-visionally approved by the ABA on the date the ap-plicant’s degree is conferred are considered to be reputable and qualified.

Mississippi Applicant must have a J.D. from an ABA-approved law school unless applicant comes from a reciprocal jurisdiction that does not require it.

New Hampshire Foreign law school graduates who meet other requirements and who are licensed in another state are eligible for admission on motion. Graduates of 2 non-ABA-approved schools in Mas-sachusetts are also eligible.

West Virginia Must be ABA-approved or its equivalent.


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38 Comprehensive Guide to Bar Admission Requirements 2011

CHART 11: Reciprocity, Comity, and Attorneys’ Exams

Is admission on motion based on reciprocity (that

is, is it limited to candidates from some or all

jurisdictions offering admission on motion)?

If state of initial admission requires examination of all applicants, do you require examination

of attorney applicants?

Is an attorney initially admitted by diploma privilege eligible for

admission on motion?

Attorneys’ Exams

Does your jurisdiction offer an Attorneys’ Exam?

To qualify for the Attorneys’ Exam, must an

applicant be a graduate of an ABA-approved school?

Jurisdiction Yes No Yes No Yes No Yes No Yes NoAlabama X X X XAlaska X X X XArizona X X XArkansas X X X XCalifornia X XColorado X X X XConnecticut X X X XDelaware XDist. of Columbia X X X XFlorida XGeorgia X X X X XHawaii XIdaho X X X XIllinois X X X XIndiana X X X XIowa X X X XKansas X X X XKentucky X X X XLouisiana XMaine X X XMaryland X XMassachusetts X X X XMichigan X X X XMinnesota X X X XMississippi X X X XMissouri X X X XMontana XNebraska X X X XNevada XNew Hampshire X X X XNew Jersey X X X XNew Mexico XNew York X X X XNorth Carolina X X X XNorth Dakota X X X XOhio X X X XOklahoma X X X XOregon X X X XPennsylvania X X X XRhode Island X XSouth Carolina X XSouth Dakota X X X XTennessee X X X XTexas X X X XUtah X X X X XVermont X X X XVirginia X X X XWashington X X X XWest Virginia X X X XWisconsin X X X XWyoming X X X XGuam X X XNorthern Mariana Islands X XPalau XPuerto Rico XVirgin Islands X

See supplemental remarks.


27

CHART 11: Reciprocity, Comity, and Attorneys’ Exams 39

CHART 11: Reciprocity, Comity, and Attorneys’ Exams (Supplemental Remarks)

Is admission on motion based on reciprocity (that is, is it limited to candidates from some or all jurisdictions offering admission on motion)?

Georgia If the applicant’s “sending” jurisdiction’s admission on motion rule is more restrictive than Georgia’s, then the applicant’s admission in Geor-gia would be governed by the same requirements that apply to an applicant from Georgia seeking ad-mission in the applicant’s jurisdiction.

Maine Reciprocity is limited to New Hampshire and Vermont attorneys.

Mississippi Provided that the laws from the state from which the applicant comes grant similar privileges to attorney applicants from Mississippi.

Oregon Provided that the laws from the state from which the applicant comes grant similar privileges to attorney applicants from Oregon. Attorneys who are licensed in Washington, Idaho, Utah, or Alaska and apply for admission on motion on or before December 31, 2015, need only demonstrate active, substantial, and continuous practice of law for 3 of the preceding 5 years prior to filing the applica-tion. For all other states, attorneys must have law-fully engaged in practice for 5 of 7 years preceding application.

Vermont New Hampshire and Maine attorneys may be admitted after 3 years of practice.

Wyoming Admission on motion is limited to jurisdic-tions that would admit a Wyoming attorney on mo-tion without any additional examination, including, but not limited to, the MPRE.

If state of initial admission requires examination of all applicants, do you require examination of attorney applicants?

California Attorney applicants who have been admitted as active members in good standing 4 or more years may qualify to take the Attorneys’ Exam, which is the written portion of the general bar exam (2 days out of 3). All other attorney applicants must take the general bar exam.

Georgia Attorney from a nonreciprocal state may sit for the Attorneys’ Exam.

Rhode Island Must sit for 3 local questions, 1 MPT question, and 6 MEE questions.

Is an attorney initially admitted by diploma privi-lege eligible for admission on motion?

Arkansas Provided the applicant is a graduate of an ABA-approved law school.

Connecticut Provided the applicant is a graduate of an ABA- or committee-approved law school.

Mississippi Provided that the laws from the state from which the applicant comes grant similar privileges to attorney applicants from Mississippi.

Ohio Applicant who has been admitted in another ju-risdiction by diploma privilege is eligible for ad-mission without examination only if applicant has also taken and passed the bar examination and been admitted as an attorney-at-law in the highest court of another state or the District of Columbia.

Tennessee Must file a petition with the board setting forth reasons why he/she should be admitted; a hearing is held in response.

To qualify for the Attorneys’ Exam, must an applicant be a graduate of an ABA-approved law school?

Maine If applicant is not a graduate of an ABA- approved law school, the applicant must have en-gaged in the practice of law for 3 years in the U.S. jurisdiction where admitted.

Maryland If the attorney applicant has practiced law for 10 years, or 5 years in the immediate past 10 years, following admission by examination in another jurisdiction, applicant is eligible for special attor-ney exam and need not be a graduate of an ABA- approved law school.

Rhode Island Applicant who is not a graduate of an ABA-approved school may sit for the Attorneys’ Exam with 5 years of active full-time practice.

Utah May sit for the Attorneys’ Exam if applicant is a graduate of an ABA-approved law school, has been licensed for 5 years, and has been in active practice for 4 of 5 years preceding application.


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ethics of multijurisdictional practice · a. litigation practice questions ... b. litigation...

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