Section 1.3: Unauthorized and Multijurisdictional Practice (Rule 5.5)

Section 1.3: Unauthorized and Multijurisdictional Practice

The Concept of the Unauthorized Practice of Law (UPL)

The regulation of the legal profession is designed to protect the public from incompetent and unethical practitioners. To achieve this, states restrict the practice of law to licensed attorneys who have demonstrated the requisite knowledge, character, and fitness. Under ABA Model 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.

What Constitutes the "Practice of Law"?

Because the definition of the "practice of law" varies by state, the Model Rules do not provide a singular definition. However, courts generally look to whether the activity requires the professional judgment of a lawyer—the application of legal knowledge and skills to a specific person's legal circumstances.

Common examples of activities that constitute the practice of law include:

• Giving Legal Advice: Advising a client about their legal rights, responsibilities, or the likelihood of success in a legal matter. This includes interpreting statutory language, explaining the legal consequences of a contract clause, or advising a client on whether to accept a settlement.
• Representing Clients in Court: Appearing before a judge, administrative law judge, or arbitrator on behalf of a client. This also includes conducting depositions or signing pleadings and motions.
• Drafting Legal Documents: Creating wills, trusts, deeds, contracts, or pleadings that affect a person's legal rights. Simply acting as a scrivener (typing up terms agreed upon by the parties without modifying them) is not UPL, nor is providing general legal information (such as a generic booklet on how to write a will).
• Negotiating Legal Rights: Representing a client in negotiations to settle a dispute or finalize a transaction where legal rights and liabilities are determined.

Activities that Do Not Constitute UPL

Certain activities are legally permissible for nonlawyers:

• Pro Se Representation: An individual always has the constitutional right to represent themselves in any legal matter, including court proceedings. (However, a nonlawyer cannot represent their own corporation, partnership, or child in court without a lawyer, as those are separate legal entities).
• Clerical and Administrative Support: Filling in the blanks on standard pre-printed legal forms (such as simple lease agreements or uncontested divorce forms) is generally permitted, provided no legal advice or judgment is exercised in selecting or modifying the forms.
• Administrative Agency Representation: Some federal and state administrative agencies (such as the Social Security Administration or the patent office) explicitly permit nonlawyers to represent claimants before them.

Assisting in the Unauthorized Practice of Law

A lawyer is strictly prohibited from assisting a nonlawyer in UPL. While lawyers frequently employ paralegals, legal assistants, and investigators, the lawyer must actively supervise their work, review all documents, and retain ultimate professional responsibility for the representation. A lawyer assists in UPL if they permit a paralegal to meet with clients to give legal advice, sign the lawyer's name to pleadings without review, or run a "depot" office where the lawyer is rarely present.

Multijurisdictional Practice (MJP) Restrictions

Historically, a lawyer was strictly confined to practicing within the state where they held a license. Under Model Rule 5.5(b), a lawyer who is not admitted to practice in a jurisdiction must not:

1. Establish an office or other systematic and continuous presence in the 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 that jurisdiction.

This rule applies even to remote work. An attorney licensed only in State A cannot move to State B and open a physical office to practice State A law remotely, nor can they advertise to State B residents, unless State B has specific rules permitting remote practice under a safe harbor.

Exceptions for Temporary Practice: Rule 5.5(c)

Recognizing the reality of modern interstate commerce, Model Rule 5.5(c) permits a lawyer admitted in another U.S. jurisdiction (and not disbarred or suspended) to provide legal services on a temporary basis in a jurisdiction where they are not licensed, in four specific circumstances:

1. Association with Local Counsel: The out-of-state lawyer associates with a lawyer licensed in the host jurisdiction who actively participates in the matter. The local lawyer must be genuinely involved and cannot serve as a mere "mail drop" or front for the out-of-state attorney.
2. Pro Hac Vice Admission: The lawyer provides services in or reasonably related to a pending or potential proceeding before a tribunal, provided the lawyer obtains (or reasonably expects to obtain) authorization from the tribunal to appear. This is known as pro hac vice ("for this turn") admission. It covers pre-trial activities, such as taking depositions or reviewing documents, as long as they relate to the anticipated litigation.
3. Alternative Dispute Resolution (ADR): The services are in or reasonably related to a pending or potential arbitration, mediation, or other ADR proceeding, and they arise out of or are reasonably related to the lawyer's practice in a jurisdiction where they are admitted. This exception applies because ADR is private and often does not require formal court admission.
4. Services Reasonably Related to Home-State Practice (Transactional Catch-All): The temporary services arise out of or are reasonably related to the lawyer's practice in their home jurisdiction. This is a critical exception for transactional lawyers. For example, if a lawyer licensed in State A represents a corporate client based in State A, and the client wants to acquire a business in State B, the lawyer may travel to State B to conduct due diligence, negotiate terms, and draft contracts. The work is temporary and directly related to the lawyer’s home-state representation.

Exceptions for Systematic and Continuous Practice: Rule 5.5(d)

In two narrow circumstances, a lawyer may establish a permanent office or systematic presence in a state where they are not licensed:

1. In-House Counsel and Government Attorneys: A lawyer may provide legal services through a continuous presence to their employer or its organizational affiliates (such as a corporation or government agency). Because the client is a sophisticated entity capable of evaluating the lawyer’s credentials, the state does not require full bar admission. However, this exception is limited to advisory and transactional work; if the in-house lawyer wishes to appear in a state court, they must seek pro hac vice admission.
2. Federal or Other Authorized Practice: A lawyer may practice through a continuous presence if authorized by federal law or other rules of the host jurisdiction. Examples include patent attorneys registered with the USPTO, military lawyers, and immigration attorneys. Because federal law governs these areas, state licensing rules are preempted under the Supremacy Clause of the U.S. Constitution.