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self-study / Legal Ethics

Can an attorney be in two places at once?

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David C. Carr

Law Office of David C. Carr

Legal ethics

525 B St #1500
San Diego , CA 92101-4417

Phone: (619) 696-0526

Email: dccarr@ethics-lawyer.com

Loyola Law School

A recent Minnesota discipline case raises the question first posed by the Firesign Theatre 40 years ago: How can you be in two places at once when you aren't anywhere at all? The answer, according to a majority of the Minnesota Supreme Court, is: quite easily.

The facts are simple. A lawyer is admitted in Colorado and actively practicing there, while also licensed but inactive in New York, Florida and Alaska, but not Minnesota where his spouse's mother and father live. These in-laws have a dispute with their condominium association, which has obtained a judgment against them for $2,368.13. They ask the Colorado lawyer for help in dealing with the condominium's Minnesota lawyer, who is harassing them with phone calls to get the judgment paid.

Over a period of four months, the dutiful son-in-law exchanges several dozen emails with the Minnesota lawyer in an attempt to negotiate a resolution. Colorado lawyer is upfront about the fact that he is not admitted in Minnesota, but tells his opposing counsel that a Minnesota lawyer will be hired if it becomes necessary to file an action in Minnesota.

Unfortunately, the Colorado lawyer failed to realize that he already was in Minnesota, at least in the view of the Minnesota Supreme Court. Counsel for Minnesota filed a complaint with the Minnesota discipline authorities (which did not deter him from sending more email to the Colorado lawyer later, asking whether he still represented his in-laws and whether settlement was possible.) At the disciplinary hearing, the Colorado lawyer admitted that he did not research Minnesota law on either foreclosure or the unauthorized practice of law. He argued that he did not commit the unauthorized practice of law in Minnesota because he never entered the state, never established an office or other systematic presence in the state, and never appeared in a Minnesota court by filing papers. The hearing panel affirmed the private admonishment that had been issued by the Minnesota discipline authorities, finding the Colorado lawyer had violated Minnesota Rule of Professional Conduct 5.5(a) by merely sending to a lawyer in Minnesota an email informing him that the Colorado lawyer represented a Minnesota resident in a Minnesota legal dispute. In August, the Minnesota Supreme Court upheld that admonishment in a 4-3 decision.

California has been called the place where the future is invented and the Minnesota court cited to a landmark California case Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998). Birbrower involved attorneys not licensed in California who were attempting to collect legal fees for work that they had actually done while being physically present in California. While seemingly not related to the actual nature of the dispute in Birbrower, the California Supreme Court announced the doctrine of "virtual law practice" holding that "one may practice law in the state in violation of [the unauthorized practice of law statute] although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means."

Birbrower came at the near-dawn of the internet age and its application to the world that was being created at the time it was issued seems clear. One of the reactions to Birbrower and the new world then-aborning was the revision of ABA Model Rule 5.5 to accommodate the modern phenomenon of multi-jurisdictional practice.

What the California lawyer must be worried about is the reverse-Birbrower situation, where legal services are provided to a client who is not in California. Every jurisdiction but California has looked to the ABA Model Rules as the basis for their discipline rules; our California Rule of Professional Conduct 1-300 simply forbids us from practicing law in a jurisdiction where doing so would violate that jurisdiction's rules. And every jurisdiction has a rule based on Model Rule 5.5.

Model Rule 5.5(a) restates our Rule 1-300(b). 5.5(b) defines the unauthorized practice of law as (1) establishing an office or other systematic and continuous presence in the jurisdiction for the practice of law; or (2) holding out to the public or otherwise representing that the lawyer is admitted to practice law in the jurisdiction. Finally, the most complicated and controversial part of the rule defines "safe harbors" that govern the provision of legal services on a temporary basis. These include services undertaken in association with a lawyer properly admitted in the jurisdiction who is active in the matter, services rendered in preparation for admission pro hac vice, services rendered in an alternative dispute resolution (ADR) proceeding connected with the lawyer's practice in a jurisdiction where the lawyer is admitted (the Birbrower scenario) ; or services that arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted.

Of significance is that every jurisdiction has a different version of Rule 5.5 and many jurisdictions also have statutes (like California) that prohibit the unauthorized practice law, typically in much more categorical terms, for instance, N.Y. Jud. Law Section 478, which provides that no person may practice law in New York unless licensed in New York. The California lawyer who seeks to represent clients in another jurisdiction must thoroughly research the law in that jurisdiction to determine if the lawyer's actions are permissible there.

An example of what can happen when that research isn't done, when the lawyer blithely assumes that they can represent someone in another jurisdiction, is the discipline case In the Matter of Lenard, 5 Cal. State Bar Ct. Rptr. 250 (Review Dept. 2013). The respondent had entered into a relationship with three California consumer debt settlement companies who advertised extensively nationwide for clients who sought to compromise and release their debts. The legal services agreement that the clients signed did not inform them that the respondent attorney was licensed in California only. The respondent also sent "cease and desist" letters to creditors in nine different states again with no disclaimer informing the creditors that he was licensed only in California. The State Bar Court found that Lenard held himself as entitled to practice law in nine jurisdictions, and, moreover, actually did practice law in those jurisdictions by sending letters to creditors. None of the "safe harbor" provisions of Rule 5.5 applied in those jurisdictions that had enacted 5.5(c). Because of his prior record of three disciplines, Lenard was disbarred. Even without those priors, his conduct would have resulted in a lengthy suspension.

Cyberspace has been described a place that is everywhere and nowhere at the same time (see the Electronic Freedom Foundation's Declaration of Independence of Cyberspace.) This creates problems in a patchwork system of licensing that is pegged to geographical location, problems that won't be solved anytime soon even as half-measures like ABA Rule 5.5 attempt to reconcile tradition and reality. Until that far-off day, lawyers must be cautious before undertaking extradjurisdictional representation.

#84

Ben Armistead


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