Unauthorized practice

Subscribe to Unauthorized practice

Although I love my home state of Ohio, I have to acknowledge that we are not often in the avant-garde when it comes to legal ethics.  After all, Ohio was one of the last jurisdictions in the Union to adopt the Model Rules of Professional Conduct (2007).  But last week, the Ohio Supreme Court put out for public comment proposed rule amendments that would add the Buckeye State to a small number of progressive jurisdictions — namely, those that permit lawyers to practice temporarily while awaiting approval of their applications to “waive in” to the bar.

Out-of-the box AWOX

As background, most U.S. jurisdictions have some form of “admission without examination” process (“AWOX”), to allow lawyers licensed elsewhere, who have a specified number of years of practice under their belts and meet other qualifications, to become licensed without having to take the bar exam.

But the AWOX application process is a bureaucratic one and can be slow, requiring a character-and-fitness assessment, filling out a long form and providing lots of documentation.  In Ohio, the process can take nine months.  (Like gestation of another sort.)

In the meantime, what can the applicant do as far as practicing law?  Most jurisdictions answer “Nothing.”  Without a license in that state, an AWOX applicant essentially has the status of a law clerk during the time that the application is pending.

Restrictive AWOX rules limit the opportunities of migrating lawyers, in an economy that is increasingly borderless in other respects.  For instance, a lawyer who has to move to a new jurisdiction to follow a spouse’s employment can face considerable downtime, even though the lawyer is eligible for AWOX.  The rules also put law firms who want to hire laterals from out of state in a bind, knowing that a candidate might have to put down an existing practice and work (and be billed) as a paralegal while awaiting AWOX.

The ABA has long been a proponent of a model rule that it calls “Practice Pending Admission.”  The proposed rule, promulgated in August 2012, establishes a window of time during which a lawyer who has a license in good standing elsewhere and a designated number of years of experience can practice temporarily in a different state while awaiting admission there.

Select group with progressive rules

Only a very few jurisdictions currently permit any form of practice pending AWOX.  They include the District of Columbia, under Ct. of Appeals R. 49(c)(8) (“Limited Duration Supervision by D.C. Bar Member”) and Missouri, under Sup. Ct. R. 8.06 (“Temporary Practice by Lawyers Applying for Admission to the Missouri Bar”).

Now, Ohio proposes to join this vanguard.  Under proposed amendments to the state supreme court’s bar governance rules, an applicant who is eligible for AWOX and has submitted an AWOX application could apply for permission to practice for 365 days while awaiting processing of the application.

Two of the key requirements under the proposed Ohio rule:  the applicant must submit the AWOX application within 90 days of establishing an office or “systematic presence” in Ohio, and must either “associate with an active Ohio lawyer who is admitted to practice in Ohio” or attest that the applicant will “only practice the law of the jurisdiction in which the applicant is already admitted.”

The Ohio proposal is out for public comment until April 10.

In re Application of Jones

The new Ohio proposal follows the state supreme court’s decision last fall in In re Application of Jones.  The case involved a licensed Kentucky lawyer who moved just across the Ohio River to join the Cincinnati office of the firm she was already practicing with.  Sitting in Cincinnati, she continued to represent her Kentucky litigation clients in Kentucky courts, but when she applied for AWOX under Ohio’s current rules, the Board of Character and Fitness said she had been engaging in the unauthorized practice of law.

The Ohio Supreme Court, though, held that the lawyer was engaging in a permitted form of temporary practice under Ohio’s version of Model Rule 5.5(c)(2), which says that a lawyer can practice in Ohio in connection with proceedings before a tribunal located where the lawyer is authorized to practice, and approved the lawyer’s AWOX application.

That was the right result, and I’m proud to say that my firm spearheaded a group of law firm amici that submitted a brief in the case.

But, arguably, a better and more-direct way to support practice pending admission without examination is via a rule change — and that is what is now under consideration.  Ohio might sometimes lag behind in ethics innovations, but this time it is in the vanguard.

Out of Massachusetts comes a disciplinary opinion illustrating (again) the multiple consequences that can come from the unauthorized practice of law.  In this one, however, the twist is that two brothers were involved — and they apparently got away with their UPL for 18 years.

Practicing in the Ocean State

The two brothers were licensed only in Massachusetts — but they opened a law office in Providence, Rhode Island, which was run by one of the brother’s then-wife.  She was licensed to practice in Rhode Island; but she worked only limited hours, owned only two percent of the firm, and did not have any supervisory authority over the brothers.

Seven years after they opened the Providence office, the brothers hired another Rhode Island-admitted lawyer; he had no cases of his own, and also lacked any supervisory authority.

The brothers made all the decisions on the firm’s cases, the court found, and did all the work on them — except for signing pleadings and filing appearances in court.  They apparently delegated those functions to admitted lawyers, which is what might have allowed them to fly under the radar for so long.

Eventually, though, Rhode Island authorities caught up with the brothers, and they pleaded no contest to five criminal misdemeanors there, related to their UPL.  The brothers agreed to cease practicing law in Rhode Island, and they were barred from maintaining an office there.   Lesson #1:  UPL is a criminal violation in many jurisdictions, as well as an ethical violation under state versions of Model Rule 5.5.

Although the firm website correctly stated that the brothers were licensed only in Massachusetts, the site featured images of the Providence skyline.  Each brother’s web bio stated that he was “born and raised in Rhode Island.”  (That should count for something, right?)   Lesson #2:  A website that shaves the corners will not help your cause in a UPL proceeding.

Discipline in the Bay State

The bar discipline opinion, though, comes from the Massachusetts Supreme Judicial Court, not from Rhode Island.  So if the brothers were considering starting over in Massachusetts, where they were licensed, that hope was dashed — the Massachusetts court suspended them both from practice there.  That’s in accord with Model Rule 8.5(a), which specifies disciplinary authority in the state of licensure and where the effect of the conduct is felt.  Court rules in many jurisdictions likewise specify the ability to impose “reciprocal discipline” in response to disciplinary orders issued from outside the state.  Lesson #3:  Professional discipline can be imposed not only where the effect of your conduct is felt, but also by your state of licensure.

In fact, while the parties had stipulated to a two-year suspension with the entire period stayed on conditions, the Massachusetts court rejected the agreement as too lenient, and imposed an actual one-year suspension.  Lesson #4:  While parties in disciplinary cases can agree on recommended sanctions, the final arbiter is the court hearing the matter.  A court can depart from the recommendation downwards — or upwards, as here.

Don’t let this happen to you

A cautionary tale to be sure.  In support of its sanction, the Massachusetts Supreme Judicial Court pointed to the length of the UPL, that the brothers were “well aware that they were not authorized to practice law in Rhode Island,” and that by doing everything but signing pleadings and appearances, and by failing to clearly advertise that they were unlicensed in the Ocean State, they intentionally created a system “designed to evade the rules of licensure.”

It’s cold outside, baby! At least it is here in northeast Ohio.  If you live in the frozen north, you might be lucky enough to have a winter home in a more weather-friendly state where you spend part of your time.  What if you want to do legal work from there while enjoying the sunshine – are there any ethics issues?  The answer is “Yes.”  There are things you need to watch out for while wearing those sunglasses.

Interstate UPL

Assuming that you don’t have a license to practice in that sunny state, the issue, of course, is the unauthorized practice of law (UPL), which is proscribed by Model Rule 5.5(a).  Exceeding the jurisdictional bounds of your license is nothing to fool around with.  We’ve blogged about a Colorado lawyer who was disciplined in 2016 by the Minnesota Supreme Court for helping his Minnesota in-laws in a debt collection matter in a Minnesota court.  The court reprimanded the Colorado lawyer, even though he was only negotiating over the phone with opposing counsel, and never came to Minnesota.  A flawed decision, as we pointed out — but  it illustrates the border-protecting outlook that can sometimes characterize state bar regulators.

No waive-ins

Of course, if you are going to be spending time in your winter get-away every year, you can consider being admitted in the other state on motion, without examination — aka “waiving in.”  Many states have a provision for that, if you have some years of practice under your belt.

The problem is that some of the states with the best weather also try to protect their resident lawyers from snow-bird competition — we’re looking at you, Florida, Nevada, California and Louisiana.   They are among the jurisdictions that the ABA’s most recent listing shows as lacking any form of admission by motion, requiring anyone seeking admission to take the state bar exam.

For other jurisdictions, there can be paperwork and fees involved in waiving in, along with varying requirements for the number of years you must have practiced in order to be eligible.

Temporary practice

What if you don’t want to undergo the waive-in process, or your temporary home is located in one of the states that doesn’t offer it?

Model Rule 5.5(c), adopted in some form in 47 states, creates four safe harbors for lawyers to “provide legal services on a temporary basis” in a jurisdiction where they are not admitted.  They are: (1) associating with local counsel who actively participates in the matter; (2) being admitted pro hac vice in litigation; (3) participating in arbitration or mediation; and (4) where the legal services in the other state “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

It’s that fourth factor that can be of help to a snow-bird lawyer, potentially covering work where you are not licensed.  A 2016 article by Ron Minkoff for the ABA’s Professional Lawyer notes that under that safe harbor, “if all you do in your second home is work for your … home state clients, applying only home state law, and do not attempt to solicit local clients, it is dubious that state disciplinary authorities [where your temporary home is located] will care.”

That’s good advice.  But some caveats:  “temporary practice” means temporary.  Minkoff cautions that regulators “will not be amused” if you hang out a shingle on your beach-side mailbox or list yourself in the local phone book — let alone rent out space in a storefront.  All those are indicia of more-than-temporary intent.

Also, broad though it may be, “arising out of” or being “reasonably related to” your practice in your home state is still subject to limits.  For instance, in the Minnesota case mentioned above, the lawyer tried to argue that his work for his in-laws related to his home-turf practice, but the court rejected the notion.

Comment [14] to Rule 5.5(c) lists some of the “varied” factors pointing to that “reasonable relationship,” among them:  the client may be a resident of your home state or have significant contacts there; the matter may have a significant connection to your home jurisdiction; the client may be drawing on your expertise in matters involving a “particular body of federal, nationally-uniform, foreign or international law.”  In the Minnesota case, there weren’t any factors pointing to a reasonable relationship with the Colorado lawyer’s home state, at least according to the court.

Keep warm and carry on

As always, local rules count here, and you should check those of the hopefully-warmer state where you winter — those are the ones that will apply to your border-crossing activities, not the rules in your state of admission.  But if you are one of those lucky snow-birds — well, I envy you.

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.

Businessman stopping traffic at roadblockI love LinkedIn, but here’s a potential hazard — what you say there can and will be used against you if you’re engaged in the unauthorized practice of law.

A Colorado lawyer found that out the hard way:  he was suspended in Pennsylvania for a year, and got the same discipline in Colorado, where he was licensed.  (Actually, the suspensions were for a year-and-a-day, a punishment term that is loosely associated with ancient English common-law.  Now you know.)

LinkedIn holding-out

The only place the lawyer was licensed was Colorado.  Nonetheless, according to the Pennsylvania disciplinary board’s report and recommendation, he maintained an office in the Keystone State, and registered that address with the Colorado Supreme Court.

He also held himself out to the public as being admitted to practice in Pennsylvania — namely in his LinkedIn profile, which mentioned his “Pennsylvania law firm,” and the Pennsylvania client entities he claimed to have represented.  The profile also falsely stated that the lawyer had been licensed since 2006 to practice in Pennsylvania and also California.

That was a serious problem — in Pennsylvania, as in most states, holding yourself out as authorized to practice when you are not is an independent instance of misconduct (see Model Rule 5.5(b)(2)).  It can even be a violation of state statute, like it is in my home state of Ohio.

The lawyer claimed that the false information on his profile resulted from not being “careful in writing” it, and that he had mistakenly cut and pasted information “from his resume” into the profile.  The disciplinary board found those claims “not credible.”

Hearing hassle

The LinkedIn problem might have been enough to get the lawyer tagged for the unauthorized practice of law, in violation of Pennsylvania’s version of Model Rule 5.5, and for making “overt misrepresentations” in violation of Rule 8.4(c).  But that wasn’t all he did, according to the disciplinary board findings.

In 2014, the lawyer appeared as counsel on behalf of a parent and her minor child at an expulsion hearing held at a Pennsylvania high school.  The child happened to be the lawyer’s step-son, but the lawyer never disclosed that.  He introduced himself at the hearing as counsel, and when asked for his attorney ID number the lawyer gave his Colorado bar number, but never disclosed before, during or after the hearing that he had never been admitted to practice in Pennsylvania.

The lawyer continued his representation in the high school expulsion matter for the next year, until the term of the child’s school discipline was complete.  He then wrote to the superintendent that his “representation of [Child] is hereafter terminated.”

Don’t let his happen to you…

The lawyer in this disciplinary case brought a heap of trouble down on himself.  But even if you would never practice where you are not authorized to do so, and would never hold yourself out as being admitted where you are not, this disciplinary case has a few takeaways.

  • First, police your social media statements, and make sure they are accurate — because they can be a basis for disciplinary trouble.  Here’s an article by my LinkedIn buddy, Missouri lawyer Michael Downey, on LinkedIn ethics issues — it’s from 2013, but still well worth reading.
  • Second, if you get an inquiry from bar disciplinary counsel respond to it, even if it’s just to ask for more time or get clarification.  The lawyer here failed to respond for many months, leading to an additional charge of failure to cooperate, which is another independent basis for discipline under Pennsylvania bar rules (as it is in other states, too).
  • Third, be aware that ethical misconduct can be prosecuted in the state where it occurs as well as in your home jurisdiction, where you are licensed — and as here, your state of licensure will impose “reciprocal discipline” based on a finding of misconduct elsewhere.

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.

Color speech bubbles with censored swearing wordsBe aware of your jurisdiction’s limits on what a “retired” lawyer can and cannot do, and obey them — or risk being tagged for the unauthorized practice of law.   And, oh yeah — communicate politely.  That’s a  dual lesson a lawyer in Illinois may be about to learn, according to a disciplinary complaint filed in December.

Retired status

The lawyer was admitted to practice in 1965.  In January 2013, he registered as “inactive,” which allowed him to pay a reduced yearly registration fee, but made him ineligible to practice.  A few months later he reactivated his license.  Then, in December 2014, the lawyer registered as “retired,” which again made him ineligible to practice.

Nonetheless, in January 2015, the lawyer agreed to represent a client on a post-dissolution child-visitation petition, pro bono.  He told opposing counsel he represented the client, and engaged in negotiations over a period of about three months.  Two days before the initial court date, the lawyer revealed to opposing counsel that he was retired, and therefore no longer appeared in court, “but hoped that the parties would be able to settle matters out of court.”  Opposing counsel then told the lawyer that if he was on retired status, “he was not authorized to practice and she could no longer speak to him regarding the matter.”

“Good … Luck, Sweetie.”

The lawyer persisted in trying to settle the matter; opposing counsel again refused to participate.  That apparently touched a nerve.  The lawyer e-mailed opposing counsel, including the following:

“Done! You persuaded me. I am fucking done communicating with youse …lawyer babe. … GOOD FUCKING LUCK, SWEETIE!!!—stanley.”

Based on this conduct, the state Attorney Registration and Disciplinary Commission charged the lawyer with unauthorized practice of law (Rule 5.5); dishonesty, fraud, deceit and misrepresentation, for failing to disclose his registration status (Rule 8.4(c)); and using means of representing the client that had no substantial purpose other than to embarrass and harass, for sending his “Good Luck” e-mail (Rule 4.4(a)).

There is other misconduct charged in the complaint as well, involving representing various family members while on inactive status.

Lessons learned

There are a couple take-aways from this still-pending disciplinary case.  First, forming an attorney-client relationship doesn’t depend on payment.  Under Illinois rules, it doesn’t matter whether you accept payment for your legal services; to provide those services, you must be authorized to practice.

Second, each state has authority to regulate lawyers practicing within its borders; this has resulted in disparate practice rules relating to “retired” lawyers, “inactive lawyers,” and similar kinds of bar registration status.

In my home state of Ohio, for instance, our Rules for the Government of the Bar make registration as “retired” irrevocable, and strip a “retired” lawyer of the ability to practice.  With that registration status, you can’t be listed as “of counsel,” or otherwise held out as being able to practice in Ohio, and violations constitute unauthorized practice.

In New York, in contrast, lawyers registered as “retired” are permitted to practice by statute, but they can’t accept compensation, as explained in Formal Opinion 2005-06 of the Association for the Bar of the City of New York Committee on Professional and Judicial Ethics.

Last, knowing the ins and outs of your registration status and its implications isn’t enough.  You should also talk nicely to opposing counsel, clients, judges, and everyone you come in contact with.

The license you save may be your own.

 

Tensed Businesswoman Using Computer At DeskWith the goal of positioning his on-line legal forms company as a solution to America’s access-to-justice problem, Chas Rampenthal, General Counsel of LegalZoom, zoomed through my home state last week, with two speaking engagements.  I caught his speech at a breakfast meeting at my home-town bar association, the Cleveland Metropolitan Bar Association (@clemetrobar).

A panacea for the under-served?

Despite the early hour, Rampenthal was a high-energy presence as he described the “Number One problem facing the legal profession” as “under-consumption of our services.”  As he sees it, “Access to justice is a fundamental right,” but the “legal system is designed” to shut out massive numbers of consumers who need basic legal services at a reasonable cost. There must be a continuum of legal care, Rampenthal urged, just as there is in the medical profession.

He described his visit to an urgent care center, where he was seen by numerous support personnel, whose work was rolled up into the doctor’s final opinion on the X-ray of his broken bone.  “The business of law and the practice of law doesn’t all have to be provided by lawyers,” he said.  A “pure professionalism model,” Rampenthal asserted– one based on lawyer regulations aimed at protecting the public — can’t address the “massive underrepresentation” of those needing legal services.

Unauthorized practice still an issue

Of course, the issue raised by LegalZoom (and by other players in the same field, which Consumer Reports Magazine has called “legal DIY websites“) is whether the model constitutes the unauthorized practice of law (UPL) — which is proscribed by every jurisdiction under Rule 5.5 and/or other regulations — and whether it can harm consumers.  LegalZoom has been subject to lawsuits and bar resistance in several jurisdictions.  We previously wrote about that here.  In June, LegalZoom sued the North Carolina Bar for antitrust violations, the culmination of a decade of investigations and cease-and-desist efforts.  The bar has moved to dismiss.

Rampenthal acknowledged that consumers can be confused by what LegalZoom offers — he said that “Everyone thinks LegalZoom is a law firm,” despite disclaimers, and that when asked to name any law firm that came to mind, survey respondents often named LegalZoom.  LegalZoom’s advertising says that it is not a law firm, as does its website.

And Rampenthal got some sharp questions from the Cleveland Metropolitan Bar Association audience.  One lawyer said that clients had asked him to review documents that didn’t actually fit the clients’ needs, but which they had generated using LegalZoom’s self-help software.

Problems abound

Rampenthal closed with a rallying cry, urging lawyers and bar regulators to be more open to the LegalZoom business model, as part of increasing access to justice for legal consumers.

But many are far from being sold on the notion.  Frank DeSantis, a co-editor of this blog, for instance, is the former chair of the Ohio Supreme Court Board of Commissioners on the Unauthorized Practice of Law.  He noted that “UPL regulations exist to protect the public, not lawyers.  LegalZoom is very dangerous because it gives its users the false impression that they have received sound legal advice,” when actually they have just selected from some drop-down menus.  Legal consumers are often not in a position to know what they need to protect their interests.  That’s where legal advice comes in.  Creating and using the wrong document from a website can be more harmful than not having a document.

Reflecting on Rampenthal’s described visit to the emergency room, DeSantis commented, “Legal self-help is as pernicious as medical self-help.”