© 2014 Armstrong Teasdale
LLP
© 2014 Armstrong Teasdale
LLP
Multijurisdictional Practice Issues
for Traveling Lawyers
Mich...
© 2014 Armstrong Teasdale
LLP
Consequences of Unauthorized Practice
 Criminal liability
 Discipline
 Civil liability (p...
© 2014 Armstrong Teasdale
LLP
Today's Program
 What is the practice of law
 Who can practice law
 Where can a lawyer pr...
© 2014 Armstrong Teasdale
LLP
What is the Practice of Law?
4
© 2014 Armstrong Teasdale
LLP
"Practicing Law" – 3 Categories
 Activities only lawyers can do (for someone else/for
pay)
...
© 2014 Armstrong Teasdale
LLP
ABA Effort to Define "Practice of Law"
 2002 Commission ran into resistance from FTC
 Fina...
© 2014 Armstrong Teasdale
LLP
Missouri Definition
It is "impossible to lay down an
exhaustive definition of the 'practice...
© 2014 Armstrong Teasdale
LLP
Missouri Statute – "Practice of Law"
Mo. Rev. Stat. § 484.010.1
 The "practice of law" is ....
© 2014 Armstrong Teasdale
LLP
Missouri Statute – "Law Business"
Mo. Rev. Stat. § 484.010.1
 The "law business" is . . . d...
© 2014 Armstrong Teasdale
LLP
What Is Not the Practice of Law
 Filling in forms – but helping select which form to use is...
© 2014 Armstrong Teasdale
LLP
Who Can Practice Law?
11
© 2014 Armstrong Teasdale
LLP
Bar Admissions – Three-Steps
Legal Education or
Substitute
Bar Examination or
Substitute
Cha...
© 2014 Armstrong Teasdale
LLP
Temporary Admission – Rule 8.06
 Qualified for admission
 In good standing in another juri...
© 2014 Armstrong Teasdale
LLP
Other Means of Admission
 Pro hac vice admission
 Foreign legal consultants – only on the ...
© 2014 Armstrong Teasdale
LLP
Reciprocity Issues
 Many states limit practice to lawyers whose home
states allow that stat...
© 2014 Armstrong Teasdale
LLP
Where can a lawyer practice?
16
© 2014 Armstrong Teasdale
LLP
Practice Permitted
 In state where licensed
 Before federal court (agency) where admitted
...
© 2014 Armstrong Teasdale
LLP
Federal Courts
 Supreme Court – special rule
 Appellate Courts – admitted to any other sta...
© 2014 Armstrong Teasdale
LLP
19
© 2014 Armstrong Teasdale
LLP
"Multijurisdictional Practice"
 Old – Simple rule (two principles) and
precedent
 New – Mu...
© 2014 Armstrong Teasdale
LLP
Missouri Rule 4-5.5(a)
A lawyer shall not
 practice law in a jurisdiction in violation of
t...
© 2014 Armstrong Teasdale
LLP
So, What is UPL? Rule 4-5.5(b)
A lawyer who is not admitted to practice in this
jurisdiction...
© 2014 Armstrong Teasdale
LLP
Permitted "Temporary" Practice – Rule 4-5.5(c)
 A lawyer admitted and authorized to practic...
© 2014 Armstrong Teasdale
LLP
 A lawyer admitted and authorized to practice law in another United
States jurisdiction and...
© 2014 Armstrong Teasdale
LLP
Summarizing Rule 4-5.5(c)
 Temporary practice is permitted when
• Local counsel actively pa...
© 2014 Armstrong Teasdale
LLP
Unauthorized v. Authorized Practice
Danger
Activities in
jurisdiction
that probably
equal UP...
© 2014 Armstrong Teasdale
LLP
What's on Continuum
Danger – Rule 4-5.5(b)
- Establishing Office
- Systematic &
Continuous P...
© 2014 Armstrong Teasdale
LLP
Active Local Counsel
 A lawyer . . . may provide legal services on a temporary basis in
thi...
© 2014 Armstrong Teasdale
LLP
Pro Hac Vice Admission
 A lawyer . . . may provide legal services on a temporary basis in
t...
© 2014 Armstrong Teasdale
LLP
Pro Hac Vice Rule
 A lawyer seeking to appear pursuant to Rule 9.03 shall pay a
fee equal t...
© 2014 Armstrong Teasdale
LLP
ADR Exception
 A lawyer . . . may provide legal services on a temporary basis in
this juris...
© 2014 Armstrong Teasdale
LLP
 A lawyer admitted and authorized to practice law in another
United States jurisdiction and...
© 2014 Armstrong Teasdale
LLP
 A lawyer admitted and authorized to practice law in another United
States jurisdiction and...
© 2014 Armstrong Teasdale
LLP
Case
Deposition
Deposition
34
© 2014 Armstrong Teasdale
LLP
"Federal Practice" Exception – Rule 4-5.5 cmt [4]
 Federal law, including but not limited t...
© 2014 Armstrong Teasdale
LLP
ABA Model Rule 5.5(d)
 A lawyer admitted in another United States jurisdiction or in a
fore...
© 2014 Armstrong Teasdale
LLP
Model Rule 5.5 comment [16]
 To further decrease any risk to the client, when advising on t...
Which Bar Can Discipline
© 2014 Armstrong Teasdale
LLP
Missouri Rule 4-8.5(a)
 A lawyer admitted to practice in this jurisdiction is subject to
th...
Which Rules Govern?
© 2014 Armstrong Teasdale
LLP
Choice of Ethics Rules --
 In any exercise of the disciplinary authority of this jurisdicti...
© 2014 Armstrong Teasdale
LLP
"Safe Harbour" – Rule 4-8.5(a)
 A lawyer shall not be subject to discipline if the lawyer's...
© 2014 Armstrong Teasdale
LLP
Lawyer-Client Agreements – Model Rule
8.5 comment (Ethics 20/20)
 [5] When a lawyer's condu...
Who Can Be Disciplined?
© 2014 Armstrong Teasdale
LLP
Supervisory Responsibility – Rule 4-5.1
(a) A partner in a law firm, and a lawyer who indivi...
© 2014 Armstrong Teasdale
LLP
"Vicarious" Liability – Rule 4-5.1(c)
(a) ….
(b) ….
(c) A lawyer shall be responsible for an...
Review
© 2014 Armstrong Teasdale
LLP
Scenario 1
 Lawyer admitted only in Missouri
 Lawyer moves to office another state (say, I...
© 2014 Armstrong Teasdale
LLP
Scenario 2
 In-House Counsel (IHC) is licensed only in Missouri
 While located in Missouri...
© 2014 Armstrong Teasdale
LLP
Scenario 3
 Lawyer licensed only in Missouri
 Client in Other State (Arkansas) calls and n...
© 2014 Armstrong Teasdale
LLP
Scenario 4
 Lawyer is licensed only in Missouri
 Lawyer moves to Colorado to do non-legal ...
© 2014 Armstrong Teasdale
LLP
Scenario 5
 Lawyer licensed in Missouri is litigating case pending
in Missouri
 Lawyer nee...
© 2014 Armstrong Teasdale
LLP
Scenario 6
 Lawyer is licensed only in Missouri
 Lawyer moves to Michigan and opens office...
© 2014 Armstrong Teasdale
LLP
Scenario 7
 In-House Counsel is licensed only in Missouri
 Company has case pending in Oth...
© 2014 Armstrong Teasdale
LLP
Scenario 8
 Other State Firm (OSF) has litigation in Missouri
 OSF has no lawyers licensed...
© 2014 Armstrong Teasdale
LLP
Scenario 9
 Missouri Firm has no attorneys licensed in Other State
 Client in Other State ...
© 2014 Armstrong Teasdale
LLP
Scenario 10
 Lawyer is licensed only in Missouri
 Lawyer receives case likely to be filed ...
Trends in Other Jurisdictions
© 2014 Armstrong Teasdale
LLP
Virginia New UPL Law
(C) Definition of "Non-lawyer." – the term "non-lawyer" means any perso...
© 2014 Armstrong Teasdale
LLP
Other States on UPL
 District of Columbia Court of Appeals Rule 49(c)(6) expressly
exempts ...
© 2014 Armstrong Teasdale
LLP
Possible Changes
 GATS – General Agreement on Trade in Services –
impact on licensure?
 Fe...
© 2014 Armstrong Teasdale
LLP
Litigation over MJP
 NAAMJP v. Simandle (D.N.J. June 9, 2014) – challenging NJ federal cour...
© 2014 Armstrong Teasdale
LLP
Thank You
 Michael Downey
 Armstrong Teasdale LLP
 314-342-8072 (extension 7032)
 Mdowne...
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Multijurisdictional practice issues for traveling lawyers ethics michael_downey

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Today in-house counsel are expected to handle legal matters for clients all over the country. In this presentation, Michael Downey covers the limits on what lawyers may do in states where they are not licensed, as well as problems that may arise for both the attorney and client when a lawyer exceeds those limits.

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Multijurisdictional practice issues for traveling lawyers ethics michael_downey

  1. 1. © 2014 Armstrong Teasdale LLP © 2014 Armstrong Teasdale LLP Multijurisdictional Practice Issues for Traveling Lawyers Michael Downey June 2014
  2. 2. © 2014 Armstrong Teasdale LLP Consequences of Unauthorized Practice  Criminal liability  Discipline  Civil liability (plus perhaps statutory fees and damages)  (Greater) malpractice liability  Privilege issues  Fee forfeiture issues  Invalidity of actions (e.g., invalid answer or notice of appeal) 2
  3. 3. © 2014 Armstrong Teasdale LLP Today's Program  What is the practice of law  Who can practice law  Where can a lawyer practice  Which rules/court regulate practice  Review 3
  4. 4. © 2014 Armstrong Teasdale LLP What is the Practice of Law? 4
  5. 5. © 2014 Armstrong Teasdale LLP "Practicing Law" – 3 Categories  Activities only lawyers can do (for someone else/for pay) • Appear in court • Sign pleadings • Take depositions • Hold oneself out as a lawyer  Activities lawyers – and select professionals – can do  Activities that, when done by a lawyer, constitute the practice of law 5
  6. 6. © 2014 Armstrong Teasdale LLP ABA Effort to Define "Practice of Law"  2002 Commission ran into resistance from FTC  Final recommendation in 2003: • States should adopt own definition • Include the "basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity" 6
  7. 7. © 2014 Armstrong Teasdale LLP Missouri Definition It is "impossible to lay down an exhaustive definition of the 'practice of law.'" In re First Escrow, Inc., 840 S.W.2d 839, 843 n.6 (Mo. 1992) 7
  8. 8. © 2014 Armstrong Teasdale LLP Missouri Statute – "Practice of Law" Mo. Rev. Stat. § 484.010.1  The "practice of law" is . . . defined to be and is • the appearance as an advocate in a representative capacity or • the drawing of papers, pleadings or documents or • the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies. 8
  9. 9. © 2014 Armstrong Teasdale LLP Missouri Statute – "Law Business" Mo. Rev. Stat. § 484.010.1  The "law business" is . . . defined to be and is • advising or counseling for a valuable consideration of any person, firm, association, or corporation as to any secular law or • the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights or • the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to obtain or securing or tending to secure for any person, firm, association or corporation any property or property rights whatsoever. 9
  10. 10. © 2014 Armstrong Teasdale LLP What Is Not the Practice of Law  Filling in forms – but helping select which form to use is likely the practice of law – MO Opinion 20000029  Reviewing lease to make sure it accurately states parties' agreement (without evaluating whether to add extra provisions) – MO Opinion 940126  Performing basic investigatory services like requesting and reviewing medical or police records – Mo Opinion 970045  Taking a sworn statement during an investigation – Mo Opinion 2003002 10
  11. 11. © 2014 Armstrong Teasdale LLP Who Can Practice Law? 11
  12. 12. © 2014 Armstrong Teasdale LLP Bar Admissions – Three-Steps Legal Education or Substitute Bar Examination or Substitute Character & Fitness Examination • ABA Accredited Law School • (Foreign/non- approved law school plus practice) •(Foreign/non- approved law school plus 24 credits at ABA- approved school) • State bar examination • Motion/reciprocity (5 of 10 prior years) •In-house admission •(Diploma privilege) • Character and fitness examination 12
  13. 13. © 2014 Armstrong Teasdale LLP Temporary Admission – Rule 8.06  Qualified for admission  In good standing in another jurisdiction  Seeking admission through another means  Lasts up to one year (lost if other attempt at admission fails)  Need supervising Missouri lawyer  (Very short, simple form) 13
  14. 14. © 2014 Armstrong Teasdale LLP Other Means of Admission  Pro hac vice admission  Foreign legal consultants – only on the law of the jurisdiction where the foreign legal consultant is admitted (Rule 9.05)  Responding to disasters 14
  15. 15. © 2014 Armstrong Teasdale LLP Reciprocity Issues  Many states limit practice to lawyers whose home states allow that state's lawyer to practice  Example: Missouri Rule 9.02 allows non-resident lawyers who are Missouri Bar members to practice only if the lawyer's home state allows non-resident bar admittees to practice 15
  16. 16. © 2014 Armstrong Teasdale LLP Where can a lawyer practice? 16
  17. 17. © 2014 Armstrong Teasdale LLP Practice Permitted  In state where licensed  Before federal court (agency) where admitted  In other jurisdictions where actions are "temporary" and "permitted" 17
  18. 18. © 2014 Armstrong Teasdale LLP Federal Courts  Supreme Court – special rule  Appellate Courts – admitted to any other state or federal court  District Courts – quite a lot of variation 18
  19. 19. © 2014 Armstrong Teasdale LLP 19
  20. 20. © 2014 Armstrong Teasdale LLP "Multijurisdictional Practice"  Old – Simple rule (two principles) and precedent  New – Much more complicated rule 20
  21. 21. © 2014 Armstrong Teasdale LLP Missouri Rule 4-5.5(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 21
  22. 22. © 2014 Armstrong Teasdale LLP So, What is UPL? Rule 4-5.5(b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by this Rule 4 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. 22
  23. 23. © 2014 Armstrong Teasdale LLP Permitted "Temporary" Practice – Rule 4-5.5(c)  A lawyer admitted and authorized to practice law 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; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted and authorized to practice law and are not services for which the forum requires pro hac vice admission; (4) . . .; or (5) …. 23
  24. 24. © 2014 Armstrong Teasdale LLP  A lawyer admitted and authorized to practice law 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) … (2) … (3) … (4) 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 (5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted and authorized to practice law. 24
  25. 25. © 2014 Armstrong Teasdale LLP Summarizing Rule 4-5.5(c)  Temporary practice is permitted when • Local counsel actively participates • Pro hac vice has been obtained or is anticipated • It is ADR and arises from jurisdiction where admitted • Temporary practice by in-house lawyer • "Arise out of and are reasonably related" to practice in jurisdiction of license 25
  26. 26. © 2014 Armstrong Teasdale LLP Unauthorized v. Authorized Practice Danger Activities in jurisdiction that probably equal UPL Safety Activities in jurisdiction that are not UPL 26
  27. 27. © 2014 Armstrong Teasdale LLP What's on Continuum Danger – Rule 4-5.5(b) - Establishing Office - Systematic & Continuous Presence - Hold out as Lawyer in Jurisdiction Safety – Rule 4-5.5(c) - Licensure (in-house, temporary, etc.) "Temporary" practice – Local Counsel Pro Hac Vice Arbitration 27
  28. 28. © 2014 Armstrong Teasdale LLP Active Local Counsel  A lawyer . . . 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; 28
  29. 29. © 2014 Armstrong Teasdale LLP Pro Hac Vice Admission  A lawyer . . . may provide legal services on a temporary basis in this jurisdiction that: (1) … (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; 29
  30. 30. © 2014 Armstrong Teasdale LLP Pro Hac Vice Rule  A lawyer seeking to appear pursuant to Rule 9.03 shall pay a fee equal to the fee paid by lawyers under Rule 6.01(j)(1), with the fee to be paid for each case in each court or administrative tribunal in which the lawyer seeks to appear.  The fee shall be paid to the clerk of this Court, who shall transfer the fee to The Missouri Bar as provided in Rule 6.07. 30
  31. 31. © 2014 Armstrong Teasdale LLP ADR Exception  A lawyer . . . may provide legal services on a temporary basis in this jurisdiction that: (1) … (2) … (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted and authorized to practice law and are not services for which the forum requires pro hac vice admission; 31
  32. 32. © 2014 Armstrong Teasdale LLP  A lawyer admitted and authorized to practice law 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) … (2) … (3) … (4) 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 (5) …. In-House Counsel Exception 32
  33. 33. © 2014 Armstrong Teasdale LLP  A lawyer admitted and authorized to practice law 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) … (2) … (3) … (4) … (5) are not within Rule 4-5.5(c)(2), (c)(3), or (c)(4) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted and authorized to practice law. "Arising Out of" Licensed Practice 33
  34. 34. © 2014 Armstrong Teasdale LLP Case Deposition Deposition 34
  35. 35. © 2014 Armstrong Teasdale LLP "Federal Practice" Exception – Rule 4-5.5 cmt [4]  Federal law, including but not limited to international treaties, may require that a lawyer be permitted to practice in this jurisdiction. Federal law that admits a lawyer to appear in a federal court or other tribunal does not authorize a lawyer to establish an office or other systematic and continuous presence to engage in other aspects of the practice of law in this jurisdiction. 35
  36. 36. © 2014 Armstrong Teasdale LLP ABA Model Rule 5.5(d)  A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that : (1) are provided to the lawyer's employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or (2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction. 36
  37. 37. © 2014 Armstrong Teasdale LLP Model Rule 5.5 comment [16]  To further decrease any risk to the client, when advising on the domestic law of a United States jurisdiction or on the law of the United States, the foreign lawyer authorized to practice under paragraph (d)(1) of this Rule needs to base that advice on the advice of a lawyer licensed and authorized by the jurisdiction consult with a U.S. lawyer authorized to provide it that advice. 37
  38. 38. Which Bar Can Discipline
  39. 39. © 2014 Armstrong Teasdale LLP Missouri Rule 4-8.5(a)  A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction regardless of where the lawyer's conduct occurs.  A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.  A lawyer may be subject to the disciplinary authority of both this jurisdiction and other jurisdictions for the same conduct. 39
  40. 40. Which Rules Govern?
  41. 41. © 2014 Armstrong Teasdale LLP Choice of Ethics Rules --  In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction. 41
  42. 42. © 2014 Armstrong Teasdale LLP "Safe Harbour" – Rule 4-8.5(a)  A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur. 42
  43. 43. © 2014 Armstrong Teasdale LLP Lawyer-Client Agreements – Model Rule 8.5 comment (Ethics 20/20)  [5] When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. . . . With respect to conflicts of interest, in determining a lawyer's reasonable belief under paragraph (b)(2), a written agreement between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's informed consent confirmed in the agreement. 43
  44. 44. Who Can Be Disciplined?
  45. 45. © 2014 Armstrong Teasdale LLP Supervisory Responsibility – Rule 4-5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. 45
  46. 46. © 2014 Armstrong Teasdale LLP "Vicarious" Liability – Rule 4-5.1(c) (a) …. (b) …. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 46
  47. 47. Review
  48. 48. © 2014 Armstrong Teasdale LLP Scenario 1  Lawyer admitted only in Missouri  Lawyer moves to office another state (say, Illinois)  Lawyer begins to practice law from an office in that other state  Is this UPL? • What if Lawyer only works on cases pending in Missouri? • What if Lawyer only works for Company XYZ as in- house counsel? 48
  49. 49. © 2014 Armstrong Teasdale LLP Scenario 2  In-House Counsel (IHC) is licensed only in Missouri  While located in Missouri, IHC constantly negotiates contracts with Company's employees in another state (Illinois)  IHC also handles all EEOC/State employment investigations  IHC will retain local counsel if litigation or a regulatory proceeding results 49
  50. 50. © 2014 Armstrong Teasdale LLP Scenario 3  Lawyer licensed only in Missouri  Client in Other State (Arkansas) calls and needs an answer filed immediately in lawsuit pending in Other State (Arkansas)  Lawyer files answer in Other State along with request for pro hac vice admission 50
  51. 51. © 2014 Armstrong Teasdale LLP Scenario 4  Lawyer is licensed only in Missouri  Lawyer moves to Colorado to do non-legal work for Corporate Employer  Friend in Colorado asks Lawyer to review a mineral lease Based on Office of Lawyer Regulation v. Bolte (Wis. 2005) 51
  52. 52. © 2014 Armstrong Teasdale LLP Scenario 5  Lawyer licensed in Missouri is litigating case pending in Missouri  Lawyer needs to depose or interview witness in Other State (Delaware)  Lawyer licensed in Other State (Delaware) represents witness  Who needs to worry about UPL?  Whose rules apply? 52
  53. 53. © 2014 Armstrong Teasdale LLP Scenario 6  Lawyer is licensed only in Missouri  Lawyer moves to Michigan and opens office only to practice federal bankruptcy litigation  Key cases – Sperry v. Florida Bar (US 1963)  In re Desilets, 247 B.R. 660 (Bankr. W.D. Mich 2000), aff'd, Rittenhouse v. Delta Home Improvement, Inc., 255 B.R. 294 (W.D. Mich. 2000) 53
  54. 54. © 2014 Armstrong Teasdale LLP Scenario 7  In-House Counsel is licensed only in Missouri  Company has case pending in Other State  In-House Counsel works on case including investigation, meeting to discuss settlement, and taking depositions 54
  55. 55. © 2014 Armstrong Teasdale LLP Scenario 8  Other State Firm (OSF) has litigation in Missouri  OSF has no lawyers licensed in Missouri, so OSF hires local counsel in Missouri (just to sign and file pleadings)  OSF Firm prepares brief that misstates governing law  Missouri lawyer signs and files brief  Has anyone engaged in UPL?  Who is responsible for misstatement of the law?  Based on In re Wilkins (Ind. 2002) 55
  56. 56. © 2014 Armstrong Teasdale LLP Scenario 9  Missouri Firm has no attorneys licensed in Other State  Client in Other State hires Missouri Firm to conduct internal investigation in Other State  Is this UPL in Other State?  Based on Decker, Hallman, Barber & Briggs matter 56
  57. 57. © 2014 Armstrong Teasdale LLP Scenario 10  Lawyer is licensed only in Missouri  Lawyer receives case likely to be filed in Other State for Missouri client  Lawyer travels to Other State many times to meet with client and investigate claim  Lawyer settles matter before filing suit in Missouri  Was this UPL? 57
  58. 58. Trends in Other Jurisdictions
  59. 59. © 2014 Armstrong Teasdale LLP Virginia New UPL Law (C) Definition of "Non-lawyer." – the term "non-lawyer" means any person, firm, association or corporation not duly licensed or authorized to practice law in the Commonwealth of Virginia. However, any lawyer not licensed to practice law in Virginia, but licensed in any other state or territory of the United States or the District of Columbia, or a foreign nation, who provides legal advice or services to clients in Virginia, shall not be subject to these Unauthorized Practice rules but shall be subject to the laws, rules and regulations of the jurisdiction(s) in which he/she is licensed to practice, as well as otherwise applicable Virginia Law including the Virginia Rules of Professional Conduct. (D) The Unauthorized Practice rules which follow represent a nonexclusive list of specific types of practice which would violate these rules. January 11, 2010 59
  60. 60. © 2014 Armstrong Teasdale LLP Other States on UPL  District of Columbia Court of Appeals Rule 49(c)(6) expressly exempts "[p]roviding legal advice only to one's regular employer, where the employer does not reasonably expect that it is receiving advice from a person authorized to practice law in the District of Columbia" from conduct that constitutes the unauthorized practice of law.  North Carolina generally provides under State v. Pledger (NC 1962) and its progeny that a corporate employee is not practicing law as long as (a) the corporate employer has a primary interest in the matter and (b) the work does not involve appearing in court, other than small claims court. 60
  61. 61. © 2014 Armstrong Teasdale LLP Possible Changes  GATS – General Agreement on Trade in Services – impact on licensure?  Federalization of Bar Admissions and Regulation • Securities lawyers • Gramm-Leech Bliley and FTC Red Flags 61
  62. 62. © 2014 Armstrong Teasdale LLP Litigation over MJP  NAAMJP v. Simandle (D.N.J. June 9, 2014) – challenging NJ federal court local rule for admitting only NJ-admitted attorneys to NJ federal court • Exceptions to NJ Rule – resident patent attorneys, criminal defense attorneys  NAAMJP v. Roberts (D.D.C. 2013) – challenging DC federal local court rule for admitting only those licensed in states that give reciprocity to DC lawyers to DC federal court • 25 of 94 courts (15 states)  NAAMJP v. Castille (E.D. Pa. 2013) -- challenging PA federal local court rule for admitting only those licensed in states that give reciprocity to PA lawyers to PA federal court • 38 states plus DC 62
  63. 63. © 2014 Armstrong Teasdale LLP Thank You  Michael Downey  Armstrong Teasdale LLP  314-342-8072 (extension 7032)  Mdowney@armstrongteasdale.com 63
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