New program from Law Practice Management focuses on ethical and other considerations in managing a multistate practice

In laying the foundation for a thought-provoking continuing legal education program on “The Ethics of Managing Multistate Law Practices,” Andrew J. Demetriou of Fulbright & Jaworski examined the “traditional value rules” of professional conduct as set out in ABA Model Rules 5.5(a) and (b), emphasizing the “systematic and continuous presence” proviso to the prohibition against practicing law in a jurisdiction other than one in which one is admitted.

In moving on to discussion of Rule 5.5(c), Demetriou contrasted the practice of providing “temporary” legal services if a lawyer is in fact admitted in another jurisdiction. Panelist Carol A. Needham, professor of law at Saint Louis University School of Law, noted, however, that pro hac vice admission requirements are being clamped down on.

William T. Barker, of Sonnenschein Nath & Rosenthal, in explaining Rule 5.5(c)(4) relating to permissible practice on a temporary basis, pointed out that a large number of states have passed “similar” rules rather than verbatim versions, and (c)(4) was a particular place to watch out for the different language. He explained the “local anchor” qualification, that in practicing outside one’s regular jurisdiction there must be a reasonable relationship to the lawyer’s practice in the jurisdiction to which he or she is admitted. Moderator Michael Downey, of Fox Galvin, followed up by pointing out that there are circumstances in which states have not passed the comment portion of the Model Rules. In those cases, a lawyer would need to look at pre-existing common law or the interpretation of that jurisdiction.

Members of the teleconference and webcast interjected with questions about specific circumstances. After panelists addressed the federal practice exception, Needham explained the different rules that apply to in-house counsel, stating that there were “lot of interesting twists” for those lawyers and is essentially a state-by-state question. But a common word of advice was given: “Delay is dangerous” in ensuring that lawyers are licensed and are eligible to offer legal advice.

In some instances, said Needham, in-house counsel are not constrained by the “temporary” restriction and can practice without taking the bar in that jurisdiction but simply by adhering to MCLE requirements and paying annual fees. Needham also explained proposed adoption of a Model Court Rule on Provision of Legal Services Following Determination of Major Disaster, and proposed amendments to ABA Model Rule 5.5 relating to the same issue, expected to come before the House of Delegates at the Midyear Meeting in February as Recommendation 104.

The program wrapped up with the panelists discussing ethical considerations in practicing law under several different hypothetical situations, including one asked by a participant relating to serving as in-house counsel, being licensed in State A, but being asked to evaluate liability or other provisions in State B. In another situation, the experts weighed in on a law firm team of lawyers licensed in three different states, with each of the states having different disclosure rules on a potential crime.

The program was sponsored by the ABA Center for CLE and the Section of Law Practice Management. A portion of the background materials used in the program is available free of charge online [PDF]. The entire program and materials are available through the ABA WebStore.

Back to top