Rule 5.5 of the American Bar Association’s Model Rules of Professional Conduct provides that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction but provides a number of exceptions to that general prohibition.  However, every attorney who performs legal services in a jurisdiction in which he or she is not admitted or performs legal services on behalf of an individual or entity located in a jurisdiction to which he or she is not admitted, should carefully analyze that jurisdiction’s version of Model Rule 5.5 to determine whether those services may constitute the unauthorized practice of law and whether, as a result, the attorney may be precluded from collecting fees for those services.

In Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, the California court of appeal upheld an order of the superior court assuming jurisdiction over the law practice of an attorney who had resigned from the practice of law with charges pending against him but who continued to represent licensees of other professions in administrative proceedings.  However, the court of appeal held that the superior court did not have jurisdiction to assume jurisdiction over the former attorney’s representation of federal prisoners seeking prison transfers from the U.S. Department of Justice.

In Augustine v. Department of Veterans Affairs (D.C. Cir. 2005) 429 F.3d 1334, the D.C. Circuit Court of Appeals held that California has no authority to require that attorneys practicing law before the Merit Systems Protection Board obtain state law licenses or to regulate the award of attorney fees for work performed before federal agencies.

However, in Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, the California Supreme Court found that a New York law firm had engaged in the unauthorized practice of law in California when it performed substantial work in California relating to the firm’s representation of a client in a dispute with a California high-tech firm.  The Supreme Court held that the law firm could not collect attorney fees for any of its unauthorized practice of law activities in California.

Additionally, in Arons v. New Jersey State Bd. of Educ. (3rd Cir. 1988) 842 F.2d 58, the Third Circuit Court of Appeals denied an award of legal fees to a lay advocate who provided legal advocacy on behalf of parents of handicapped children in administrative proceedings under the Education for All Handicapped Children Act of 1975, because there was nothing in the federal act that indicated that Congress intended to limit the states’ control over the practice of law.  (See also, Z.A. v. San Bruno Park School Dist. (9th Cir. 1999) 163 F.3d 1273 [attorney admitted to local federal bar but not admitted in California cannot recover attorney fees under the Individuals with Disabilities Education Act for legal services provided in state administrative proceedings under the Act].)

This article was prepared by Scott Drexel, Chief Trial Counsel of the State Bar of California.