Multi-jurisdictional practice

Beach Office 1Practicing law out of a “virtual law office” (“VLO”), without being tied to the overhead expense of a brick-and-mortar facility, is increasingly attractive to lawyers in many stages of their careers:  junior lawyers hanging out their shingles in a tough market; senior lawyers who want to keep practicing, but in a flexible format; and mid-career lawyers who are attracted to the increased options for leveraging their practices by using cutting-edge technology.

Ohio’s Board of Professional Conduct is the latest to issue an ethics opinion on the subject.  But by not discussing an inherent issue — multi-jurisdictional practice and possible unauthorized practice — the Ohio opinion leaves some gaps.

VLO:  OK in OH

The Ohio Board’s opinion lays out the basic concepts of a VLO:  it typically involves communicating with clients “almost exclusively” in a non-face-to-face way, using various forms of technology, including secure internet portals, and without “a physical office where the lawyer works, meets with clients, and stores client files.”  Following the lead of several earlier ethics opinions, including from Florida, Pennsylvania, North Carolina and Washington, the Ohio Board in general greenlights VLO’s for lawyers in the Buckeye State.

The Board pointed to several ethics duties inherent in operating a VLO:

  • maintaining the technological competence needed to operate the VLO;
  • using reasonable efforts to prevent inadvertently disclosing client information;
  • discussing at the outset of the representation the office technology the lawyer uses;
  • keeping up adequate communication with the client, “regardless of the type of technology used;” and
  • making reasonable efforts to ensure that technology vendors are providing their services “in a manner compatible with the lawyer’s professional obligations,” as required by Ohio’s version of Model Rule 5.3(a).

“Office address” requirement

Some jurisdictions — but not Ohio — have bar rules or court rules requiring a lawyer to have a “bona fide office,” interpreted as traditional office space.  Such rules clearly limit the ability to operate through a VLO.  But even without a bona fide office requirement, a corollary issue lurks:  most state versions of Model Rule 7.2(c) require legal marketing materials to include the “office address of … [a] lawyer … responsible” for the advertising.

The Oho Board resolved that issue, saying that the language does not require a physical address, and can also include the lawyer’s home address, the address of shared office space or even a registered post office box.  In order to avoid being misleading, lawyers who have untethered themselves from physical offices must state in their advertising that they are able to meet in person with clients “by appointment only.”

VLO’s and UPL/MJP

The Ohio Board’s opinion doesn’t discuss multi-jurisdiction practice, or when an Ohio lawyer’s operation of a VLO might risk crossing the line into the unauthorized practice of law (“UPL’) in another state.  That’s somewhat puzzling — first, because Model Rule 5.5(a) (as adopted in Ohio and elsewhere), bars lawyers from practicing in a jurisdiction in violation of regulations in that jurisdiction; and second, because the Board previously dealt with the flip side of the VLO/UPL issue.  In 2011, the Board opined that out-of-state lawyers who represented Ohio residents through a VLO had impermissibly established a “systematic presence” in Ohio for the practice of law, in violation of Ohio’s version of Model Rule 5.5(b).  The Board said that “‘systematic and continuous presence’ includes both physical and virtual presence in Ohio.”

Most jurisdictions have adopted some version of the rule prohibiting out-of-state lawyers from establishing a systematic presence in that jurisdiction.  Therefore, if another state were to adopt Ohio’s stance that “systematic presence” includes virtual presence, Ohio lawyers could risk a UPL finding if they provide services to clients in that state through an Ohio-based VLO.  That’s a risk that the Ohio Board could have cautioned about.

Ethics opinions from California and Illinois (citing the 2011 Ohio opinion) have discussed the UPL issues with VLO’s.

The ABA’s Task force on E-Lawyering has advised in its Suggested Minimum Standards for Delivering Legal Services On-Line that lawyers operating VLO’s should avoid UPL by serving “only clients who are residents of the state where the firm is authorized to practice, or clients who have a matter within the state where the law firm is authorized to practice.”

That seems like a good way to stay out of border-crossing trouble, and to minimize UPL risks while using technology to engage in virtual practice, with its potential benefits.

International communication conceptAs we’ve predicted before, the increasing globalization of high-level legal practice continues to create questions about forms of legal practice – in particular, vereins, a structure aimed at letting firms based in different countries operate under a unified brand.  Mega-firms Fulbright & Jaworski  (subs. req.) and Dentons have faced motions to disqualify centered on such structural issues, and now a Texas ethics opinion issued last month questions whether lawyers in the Lone Star state can use a verein name on pleadings.  (Hat tip to Dan Bressler and the Law Firm Risk Management blog for alerting us to the opinion.)

Five AmLaw 100 firms affected

In Opinion 663, the Texas Professional Ethics Committee concluded that under the state’s Disciplinary Rules of Professional Conduct, Texas lawyers in an organization such as a verein “may not use the name of the organization as their law firm’s name on pleadings or other public communications” unless all the names are those of current or former lawyers in the Texas firm or a predecessor firm.

According to an article in Texas Lawyer, five firms on the AmLaw 100, which lists the highest-grossing U.S. law firms, are Swiss vereins that include Texas lawyers, including DLA Piper, Baker & McKenzie, Hogan Lovells, Norton Rose Fulbright and Squire Patton Boggs.

The Committee based its opinion, which is advisory, on Texas’s Rule 7.01(a), which unlike the analogous Model Rule on firm names, expressly bars lawyers from practicing under a “a firm name containing names other than those of one or more of the lawyers in the firm,” (except for deceased/retired lawyers’ names or names of predecessor firms).

The Committee’s analysis used a hypothetical Texas firm formerly named “Smith Johnson,” that has joined an “international verein” and become known as “Brown Jones Smith.”  The Texas lawyers in the verein would be violating Rule 7.01(a), said the  Committee, because “there has never been a lawyer in the Texas law firm or any predecessor firm named Brown or Jones.”

In addition, like the analogous Model Rule, Texas Rule 7.02 prohibits “misleading” firm names, and the Texas Committee concluded that the use of the “Brown Jones Smith” name would also be misleading, by creating “the appearance that all lawyers in all the law firms that are in the verein are members of a single law firm when in fact they are not.”  The firm’s statements about its composition in advertising disclaimers don’t diminish the misleading nature of the communication, the Committee said.

Be careful what you ask for?

According to Texas Lawyer, the Texas Committee issued Opinion 663 in response to an inquiry from Robert Newman, who is of counsel with Norton Rose Fulbright (a verein with Texas lawyers), and a former chair of the Committee.  Asking for an advisory ethics opinion, and then getting an adverse one, is always a possibility, although even an adverse opinion at least tells you where you stand, ethically speaking.  But the reactions of the current Committee chair and the mega-firms contacted by Texas Lawyer are interesting, and indicate that it will basically be business as usual for the firms, notwithstanding the (advisory) opinion.  The Committee chair said that “Literally nothing is going to happen” unless someone files a grievance against a lawyer for using a verein name, which he said would be a “rare” occurrence.

For their part, two firms contacted by Texas Lawyer — Norton Rose Fulbright and Baker & McKenzie — said they do not plan to make any changes as a result of the ethics opinion.  The magazine quotes the managing partner of Baker’s Dallas office, who said “We’ve been practicing in Texas as Baker & McKenzie since 1986 and plan to continue to do so.”

Whether this ethics opinion will resonate with bar regulators in other jurisdictions, and whether it will generate some disciplinary cases remains to be seen.  Also interesting is the Texas committee’s view that the law firms in the verein are not members of the “same firm,” which might have a potential impact on analyzing future conflict of interest issues, among other things.  Stay tuned for further developments.

Officer custom control signHas your mother-in-law ever asked you for legal help?  Giving legal advice to family members can be challenging for lots of reasons — but it often comes with the territory when you have a law license.  A Colorado lawyer, however, recently got into disciplinary trouble for helping his Minnesota in-laws in a small collection matter.  In a badly flawed decision, a divided Minnesota Supreme Court decided that he had engaged in the unauthorized practice of law, and that no “safe harbor” applied to permit his activities — which consisted of sending e-mails from Colorado into Minnesota in order to negotiate the judgment.

Coming 14 years after the ABA adopted Model Rule 5.5(b)-(d), this opinion spotlights how turf protection by state regulators has thwarted hopes for a multi-jurisdictional outlook that would be more in line with the realities of modern-day legal practice.

Admonished — astonished

The Colorado lawyer received the lowest level of discipline available in Minnesota — a private admonition — and therefore is not named in the court’s opinion.

His road to trouble in the North Star State began when his in-laws, residents of Minnesota, contacted him for help on a $2,300 judgment against them in a dispute with their condo association.  From his law office in Colorado, where he has been practicing for 30 years, the lawyer exchanged about two dozen e-mails with the condo association’s Minnesota attorney over a four-month span, culminating in a settlement offer by the lawyer.  Part of the lawyer’s litigation practice includes debt collection.

The state supreme court, agreeing with the hearing panel, held that “engaging in e-mail communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota.”

Astonishingly, the court majority rejected the argument that the lawyer’s efforts on behalf of his in-laws “arose out of or were reasonably related to his practice in Colorado,” even though his practice there partly involves debt collection.  Minnesota’s Rule 5.5(c)(4), like its Model Rule counterpart, creates a safe harbor for temporary practice in a state where the lawyer is not licensed, if the lawyer’s activities grow out of practice in the lawyer’s home state.  Not here, said the four-justice majority.  In a stunning bit of reality-denial, the court held that “simply because his in-laws contacted him in Colorado or appellant has done collections work in Colorado,” that was not enough to make the lawyer’s representation of his in-laws arise out of or reasonably relate to his practice in Colorado.

Dissent:  This is a “step backwards”

The three dissenting justices wrote that the e-mails and “assistance with a small judgment-collection negotiation for his parents-in-law” were reasonably related to the lawyer’s Colorado practice, and thus within the safe harbor of Rule 5.5(c)(4).  They properly saw the majority’s holding as “troubling and counterproductive,” in light of Model Rule 5.5’s policy:  to be a “bold step towards new latitude in multijurisdictional practice of law, which accommodates the increasingly mobile and electronic nature of modern, national legal practice.”  The majority’s decision, the dissenters wrote, “represents a step backwards.”

Contrary to the principles and policy goals intended by Rule 5.5, the majority’s holding, said the dissenting justices, means that “when family members or friends — an abundant source of clients — email or call a practitioner admitted in another state, seeking assistance in areas in which the practitioner is experienced and competent, relying on a relationship of trust and confidence, they must be turned away.”

The majority opinion relies on the parochial view that the Colorado lawyer’s knowledge and experience in negotiating resolutions of collection matters stopped at the state line, and that his e-mails sent into the ether across that state line constituted unauthorized practice that the citizens of Minnesota (i.e. his in-laws) needed protection from.  It’s sad that we haven’t come farther than this since 2002 and the safe-harbor provisions of Model Rule 5.5.

Florida barIn a somewhat puzzling ruling handed down on May 25, a Florida district court judge held that the court lacked jurisdiction to address whether a Massachusetts lawyer who appeared on behalf of his defendant client at a Florida mediation was engaging in the unauthorized practice of law.

As reported by Law360 (subs. req.), the plaintiff, which runs an adult subscription service, is suing defendant Sun Social and others for allegedly hosting pirated content on their internet porn sites.

No jurisdiction, no sanctions

At the mediation, Sun Social appeared through its Massachusetts counsel, who had not yet sought pro hac vice admission.  Only after the parties reached an impasse did the plaintiff object to the Massachusetts lawyer’s participation.  The plaintiff charged the lawyer with unauthorized practice and sought sanctions, including disqualification.

The district court held that it could not address whether the lawyer’s conduct was UPL, because the Florida Constitution vests the state supreme court “with exclusive jurisdiction over … the prohibition of practice by persons not members of the Florida Bar,” and case law interpreting the provision delegates the determination of UPL solely “to the Florida Bar.”

The federal court judge denied the sanctions motion, ruling that “only the Florida Supreme Court has jurisdiction to determine whether the alleged acts constitute the unauthorized practice of law,” and noting that the lawyer had since sought and obtained pro hac vice admission.

Really without teeth?

The court seems to have reached the right outcome here, but for the wrong reason — and in holding that it was required to be agnostic on the issue of UPL, the court took a too-narrow view of its power to remedy future conduct that it might be presented with.

First, Rule 4-5.5 of the Florida Rules of Professional Conduct, like its Model Rule analog, creates some limited circumstances permitting lawyers admitted elsewhere to practice temporarily in Florida — including in “pending or potential” ADR proceedings like mediations (if the services arise out of or are reasonably related to the lawyer’s practice in his or her home jurisdiction).  And second, the Southern District of Florida’s own Local Rule 11.1 incorporates the Rules of Professional Conduct as standards and provides that for violating those rules, “attorneys may be subject to appropriate disciplinary action,” including under the court’s own Rules Governing Attorney Discipline.

If the district court lacks authority to sanction lawyers who sail outside the limited safe harbor of Rule 5.5’s temporary-practice provision, that limitation does not appear in the court’s local rules.  Indeed, it would appear to run counter to the court’s power to manage the proceedings before it.

“Immature and unprofessional mudslinging”

It is possible that the court was reflecting its impatience with the parties, which, the judge wrote, had engaged in “immature and unprofessional mudslinging.”  And after all, the Massachusetts lawyer had (after “blatantly drag[ging] his feet”) finally obtained the court’s permission to appear.  But in any event, the implication that the district court would be hamstrung in dealing with ethical misconduct constituting the unauthorized practice of law is unfortunate.

2016 Start, Two Thousand Sixteen.What was the most important development in the legal ethics arena over the past five years?  I was honored to be asked by LexBlog, the folks who provide our blog platform, to share my views on this topic on the LXBN network, which has 8,000+ blog authors.  But of course, the invitation also made me think about what’s ahead for 2016 in “Ethics World.” Here are five predictions.

Continued disruptive force from all things digital

The digital age in all its manifestations will continue to exercise its disruptive, game-changing force in 2016.  It will touch everything from the duty of competence in selecting cloud vendors and guarding against data breaches to knowing about the Internet of Things and how it potentially affects your clients.  The ways that social media affect legal ethics will only proliferate as more authorities weigh in on discovery and litigation duties when dealing with social media as evidence.  And, if the past is prologue, lawyers will inevitably continue to get into trouble on social media in many ways – some of them license-killing.

Globalization will create challenges related to firm structure

High-level legal practice will increasingly be globalized, and 2016 is sure to bring more issues and questions about forms of legal practice – vereins, in particular, a structure aimed at allowing firms based in different countries to operate under a unified branding and marketing strategy.  How conflict-of-interest rules and unauthorized-practice rules will apply to these entities has been a hot issue and will continue to be in 2016.  Mega-firms Fulbright & Jaworski  (subs. req.) and Dentons have already faced motions to disqualify centered on structural issues, and developments are certain to be ongoing.

More decisions to come on role of in-house firm counsel and privilege issues

Should the attorney-client privilege apply when firm lawyers talk to a firm’s ethics guru about a possible mistake in handling a client’s matter?  The trending answer is yes.  A much-anticipated opinion from New York’s First Appellate Department will likely be issued in 2016 that will give more clarity to that jurisdiction’s lawyers, and is likely to exert influence one way or the other.

Lawyer mobility will spotlight rules on client files and property

The break-up of big firms like Dewey, Heller Ehrmann and Thelen may not be in the spotlight this coming year as they have been, but lawyer churn will persist as a fact of legal life, making it crucial to know the rules on negotiating for employment,  notifying clients, transferring client files (including digital files) and duties owed to the lawyer’s soon-to-be-former firm.

The graying of the profession puts succession planning on the agenda

I’m a proud baby boomer, so I listen when scholarly commentators point to the impact of the coming “senior lawyer tsunami,” as the 77 million of us boomers age (purchase req.).  The profession will continue to gray this year, resulting from a confluence of factors.  Fewer lawyers will enter, as evidenced by the precipitous drop in law school entry and class sizes over the past few years, while the baby boomers, blessed with health care improvements that will extend their professional lives, will keep working – many from economic necessity.  About 11 percent of U.S. lawyers in general are 65 or older, and a recent survey found that partners age 60 or older control 30 percent of revenue in U.S. law firms with 50 or more partners.  Succession planning will continue to be a key issue this year as large firms grapple with the governance aspects of client transition, and small firms and solos look at rules on selling a practice.  But issues of cognitive decline and how to protect clients from lawyers who should not be practicing will also be at the fore.

Stay tuned

Stay tuned – legal practitioners at all levels and in all settings should be closely following the developments in “Ethics World” — – both expected and unexpected — and how they affect  our ability to navigate in 2016.

If your opposing counsel is from out of state and jumps the gun by filing a complaint before being admitted pro hac vice, can you get the complaint tossed?  According to a recent opinion from the Seventh District Ohio Court of Appeals, the answer is “yes.”  By implication, the opinion also points to some limits on multi-jurisdictional practice under Rule 5.5 of the Ohio Rules of Professional Conduct.

Practicing without a license

In State ex rel. Hadley v. Pike, the plaintiff’s lawyer was licensed in Pennsylvania, but not Ohio.  He nonetheless filed a complaint in the court of common pleas in Columbiana County, Ohio; he only registered with the Ohio Supreme Court, as required, two weeks later.  And it was six weeks later before he filed a motion with the trial court to be admitted pro hac vice.  Under these circumstances, the court of appeals held, the Pennsylvania lawyer was violating the Ohio statute barring the practice of law by anyone not admitted to practice by order of the state supreme court in accordance with its rules.  That effectively made the Pennsylvania lawyer a non-lawyer at the time he filed the complaint, the court ruled, and therefore it was void ab initio as not being properly filed.

Faced with these undisputed facts, the trial court had no discretion to do anything but dismiss the complaint without prejudice for lack of jurisdiction, according to the court of appeals.  The defect was not cured by the lawyer’s later registration with the supreme court, his subsequent motion for admission pro hac vice, or the filing of an amended complaint that was intended to relate back to the original filing date.

Two requirements for pro hac vice admission

Rule XII of Ohio’s Rules for the Government of the Bar requires two steps in order for an out-of-state lawyer to be admitted pro hac vice:  (1) registering with the Ohio Supreme Court; and (2) filing a motion seeking permission to appear in the court where the lawyer intends to appear as counsel.  The rule also prescribes the necessary registration fee, and places an annual limit on the number of “proceedings” that an out-of-state lawyer can appear in.  Being admitted pro hac vice is not only required for court appearances; the rule also applies to appearing before any “body acting in an adjudicative capacity,” including a legislative body and an administrative agency.

Impact of multi-jurisdictional practice Rule 5.5

Left unexamined by the court of appeals in Hadley is Rule 5.5, the Ohio ethics rule on multi-jurisdictional practice.  That rule permits out-of-state lawyers to practice temporarily in Ohio “if the services are reasonably related to a pending or potential proceeding before a tribunal in [Ohio] if the lawyer … is authorized … to appear in such proceeding or reasonably expects to be so authorized.”

The comments to Rule 5.5 cite the process demanded by the Rules for the Government of the Bar for pro hac vice admission, and gives examples of the kinds of conduct in Ohio that a lawyer can engage in “in anticipation of a proceeding” in which the lawyer “reasonably expects to be admitted pro hac vice,” including:

  • meeting with the client;
  • interviewing potential witnesses;
  • reviewing documents; and
  • taking depositions.

Notably absent from the list of examples is filing a complaint on behalf of the client before being admitted, even though the lawyer might “reasonably expect” to be admitted.

Reading Hadley together with Rule 5.5 suggests that there is no ability under Ohio’s unauthorized practice statute, its bar government rules or its ethics rules for an out-of-state lawyer to file a complaint before being formally admitted to practice via the pro hac vice process.

Take-home lessons

Lawyers not admitted in Ohio who need to represent clients before tribunals in the state should certainly take notice of Hadley.  But many other states have similar pro hac vice rules that require something more than merely filing a motion with the court.  See, for example, Indiana, Florida, Kentucky, and Tennessee.   A website that might also help identify various state requirements is linked here.

If you are a litigator, you should be aware of pro hac vice requirements whenever you need to represent your client in a tribunal in a state where you are not licensed.