Changing Regulations of Multi-State Practice of Law

Is it the 19th or the 21st Century?Changing Regulations of theMulti-State Practice of Law Kenneth L. JorgensenMinnesota Office of Lawyers Professional Responsibility William J. WernzKathlene W. LoweDorsey & Whitney LLP

Be it Enacted by the Legislature of the State of Florida: Section 454.23, Florida Statutes, is amended to read: “Any person not licensed or otherwise authorized by the Supreme Court of Florida who shall practice law commits a felony of the third degree. This act shall take effect October 1, 2004.”

“How did we as lawyers get ourselves into the situation of having to doubt the legal validity of what many of us do every day, and do conscientiously in the belief that we are ably serving clients?” Wolfram, Sneaking Around in the Legal Profession, 36 S. Tex. L. Rev. 665 (1995)

Changes in Minnesota’s House Counsel Admission Rules Effective September 1, 2004

Rule 10. Admission By House Counsel License A. Practice by House Counsel. A lawyer licensed in another jurisdiction shall not practice law in Minnesota as house counsel unless he or she is admitted to practice in Minnesota under this Rule, Rule 6 (Admission by Examination), Rule 7 (Admission Without Examination), or Rule 9 (Admission by Temporary House Counsel License).

Old House CounselAdmission Requirements • Only provided for temporary admission of house counsel that expired after 12 months if house counsel did not obtain full admission to the Minnesota Bar by either meeting the requirements for reciprocal admission or by passing the Minnesota bar exam. • Temporary License was only available to lawyers who could attest to having engaged in the full-time practice of law for at least 5 of the previous 7 years. • Employment as House Counsel in another state may not have qualified for purposes of the “5 of 7” requirement where House Counsel had not obtained formal admission in that state.

The New Requirements • Provide for both a temporary and a long-term House Counsel license. • Reduced the 5 of 7 years full-time practice requirement to 3 of the previous 5 years. • Practice as House Counsel in another jurisdiction will qualify for purposes of the “3 of 5” requirement regardless of whether the other jurisdiction required formal admission to practice as House Counsel. • Practice under a Minnesota House Counsel Licensewill count towards satisfying the “5 of 7” years of practice requirement for obtaining full admissionto the Minnesota bar without taking the bar exam.

Additional Requirementsfor Temporary License • Certificate from lawyer’s state(s) of licensure that lawyer is in good standing and identifying any pending ethics complaints. • Affidavit from officer, director or general counsel of the applicant’s employer attesting that applicant is house counsel solely for the employer, that applicant is of “good character” and that the applicant’s employer is engaged in a “lawful business” other than the practice of law or the provision of legal services.

Requirements for Long TermHouse Counsel License • All of the requirements for the Temporary House Counsel License must be met. • Pass (scaled score of 85 or higher) the Multistate Professional Responsibility Examination. • Multistate Professional Responsibility Exam is a 2-hour 50 point multiple choice test on the Model Rules of Professional Conduct and the Model Code of Judicial Conduct. The exam is given three times each year (March, August and November).

House Counsel License Limits • Temporary House Counsel license expires in 12 months. • Both House Counsel licenses expire upon termination of the employment for which the house counsel license was obtained. • Practice is limited to advising and representing the employer and its subsidiaries but permits house counsel to make court appearances. • House Counsel lawyers are required to comply with the Minnesota Rules of Professional Conduct and are subject to Minnesota disciplinary authority.

Proposed AttorneyRegistration Changes • House Counsel will be issued an attorney license card annually with the House Counsel designation thereon. • Lawyers possessing House Counsel licenses will appear in the public listing of lawyers licensed to practice in Minnesota. • House Counsel will be required to pay the annual registration fee required of Minnesota lawyers to maintain licensure.

Minnesota’s Proposed Revisions to Rule 5.5: Unauthorized Practiceof Law by Lawyers

Minnesota Proposed Rule 5.5 (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so, except that a lawyer admitted to practice in Minnesota does not violate this rule by conduct in another jurisdiction that is permitted in Minnesota under Rule 5.5 (c) and (d) for lawyers not admitted to practice in Minnesota.

Rule 5.5 (a): Reciprocity Exemption • Model Rule 5.5 (a) subjects a lawyer to discipline in his or her home state of practice for UPL in another state. • Minnesota proposed amendment provides an exemption from UPL prosecution in Minnesota for UPL in another state if the UPL conduct would not have subjected a non-Minnesota attorney to discipline if the conduct occurred in Minnesota. • The reciprocity exemption recognizes that other states may not adopt ABA safe harbor provisions for temporary practice in another state without being licensed. See e.g., ABA Model Rule 5.5 (c).

Minnesota Proposed Rule 5.5 (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

Minnesota Proposed Rule 5.5 c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

ABA Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

Elimination of UPL Exemptionfor House Counsel • Model Rule 5.5 (d) exempted unlicensed House Counsel from UPL violations for the practice of law on behalf of the employer, unless the legal services being provided required pro hac vice admission (i.e., matters before a tribunal). • MSBA reasoned; (1) that relaxation of Minnesota’s House Counsel admission rules did not warrant this exemption; (2) all licensed lawyers should share the same professional regulations and obligations; new admission rule would permit House Counsel to represent employer before tribunals.

Rule 8.5:Expanded Disciplinary Jurisdiction • Subjects a lawyer to the discipline authority of any state in which he or she engages in the “practice of law” regardless of whether the lawyer is licensed in that state. • A choice of law provision dictates that the governing ethics law is to be that state in which the predominant effect of the conduct occurs. • Historically, lawyer discipline authorities have be reluctant to exercise jurisdiction over non-licensed lawyers: • Inadequate funding and lack of resources. • Efficacy of discipline imposed on foreign lawyers. • Lack of cooperation between disciplinaryauthorities in enforcing reciprocal discipline inthe lawyer’s state of licensure.

California UPL Issues

Birbrower, Mantalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 17 Cal. 4th 119, 949 P.2d 1 (Cal. 1998)

California Rule 965. Registered In-House Counsel (a) [Scope of practice] Subject to all applicable rules, regulations, and statutes, an attorney practicing law under this rule: (1) Is permitted to provide legal services in California only to the qualifying institution that employs him or her; (2) Is not permitted to make court appearances in California state courts or to engage in any other activities for which pro hac vice admission is required if they are performed in California by an attorney who is not a member of the State Bar of California; and

California Rule 965. Registered In-House Counsel (a) [Scope of practice] Subject to all applicable rules, regulations, and statutes, an attorney practicing law under this rule: (3) Is not permitted to provide personal or individual representation to any customers, shareholders, owners, partners, officers, employees, servants, or agents of the qualifying institution.

California Rule 965. Registered In-House Counsel (b) [Requirements] For an attorney to practice law under this rule, the attorney must: (1) Be an active member in good standing of the bar of a United States state, jurisdiction, possession, territory, or dependency; (2) Register with the State Bar of California and file an Application for Determination of Moral Character;

California Rule 965. Registered In-House Counsel (b) [Requirements] For an attorney to practice law under this rule, the attorney must: (3) Meet all of the requirements for admission to the State Bar of California, except that the attorney: (A) Need not take the California bar examination or the Multistate Professional Responsibility Examination; and (B) May practice law while awaiting the result of his or her Application for Determination of Moral Character; (4) Comply with the rules adopted by the Board of Governors relating to the State Bar Registered In-House Counsel Program;

California Rule 965. Registered In-House Counsel (b) [Requirements] For an attorney to practice law under this rule, the attorney must: (5) Practice law exclusively for a single qualifying institution, except that, while practicing under this rule, the attorney may, if so qualified, simultaneously practice law as a registered legal services attorney; (6) Abide by all of the laws and rules that govern members of the State Bar of California, including the Minimum Continuing Legal Education (MCLE) requirements;

California Rule 965. Registered In-House Counsel (b) [Requirements] For an attorney to practice law under this rule, the attorney must: (7) Satisfy in his or her first year of practice under this rule all of the MCLE requirements, including ethics education, that members of the State Bar of California must complete every three years and, thereafter, satisfy the MCLE requirements applicable to all members of the State Bar; and (8) Reside in California.

Where Does theGreatest Exposure Lie? • Rules governing advertising and solicitation. • Ethics rules that tend to differ from state to state because of judicial interpretations (e.g., Rule 4.2 and whether a lawyer can have an ex parte communication with the employee of a represented litigation adversary. • States that have traditionally taken a parochial view or approach from a lawyer discipline perspective towards foreign lawyers.

Why and How This Could Change • Greater clarity and notice about which jurisdiction’s ethics rules are applicable to the conduct. • More states, including Minnesota, appear to be adopting the ABA Model Rules creating more uniformity. • Rule 5.5 (c) safe harbors from unauthorized practice will cause more lawyers to practice, at least temporarily, in states where they are not licensed. • As more lawyers continue to cross state boundaries in their practices, protection of the public will require discipline authorities to respond to ethicsviolations by unlicensed foreign lawyers.

Changing Regulations of Multi-State Practice of Law