Kattman Materials (September 18, 2020 Seminar)

Wisconsin Entertainment Lawyers Association Ethics Presentation

 

PART 2 - Risks and Ethical Considerations Associated with Multi-Jurisdiction Practice (MJP)

 

{return to seminar materials website}

 

  • Attorney Daniel E. Kattman (L’00), Shareholder, Reinhart Boerner Van Deuren s.c., Milwaukee, Wisconsin

 

  1. Introduction

 

Technology has made it easier for attorneys to engage clients from virtually any location in the world. As a result, attorneys are often called upon to negotiate, advise, litigate, and render legal services to clients in jurisdictions where that attorney is not licensed.This CLE examines ethical considerations for counsel engaged in Multijurisdictional Practice of Law (MJP) and unauthorized practice of law (UPL); and will examine recent changes to relevant ABA Model Rules and various state rules and court decisions. While discussed in the context of sports and entertainment law, the general ethical principles discussed in this CLE can also be used throughout other practice areas.

 

  1. History and Current Trends

 

  1. Most states do not distinguish between UPL by non-lawyers and UPL by lawyers licensed in other jurisdictions.

 

  1. Charges of the unauthorized practice of law (UPL) arising from Multijurisdictional Practice of Law (MJP) are rare.  Most common occurrences:

 

  1. License has been suspended.

 

  1. Fee dispute between attorney and client located in another jurisdiction.

 

  1. Out-of-state lawyer systematically and continuously provides legal services in a particular jurisdiction without being admitted there.

 

  1. Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara:

 

  1. Highly controversial 1998 California Supreme Court decision, which held that New York lawyers who provided corporate counseling and filed an arbitration demand in California for a California-based client could not collect fees under their agreement with the client because the lawyers had violated California’s misdemeanor UPL statute.

 

  1. Implications of Birbrower caused an uproar among transactional lawyers and led to regulatory changes in California and significant changes to Model Rules of Professional Conduct 5.5 and 8.5.

 

  1. POST BIRBROWER ABA RULES

 

  1. ABA Model Rule 5.5 states that an unadmitted lawyer cannot “establish an office or other sys­tematic and continuous presence” or “hold out to the public or otherwise represent that the lawyer is admitted to practice law” in the jurisdiction.

 

  1. ABA Model Rule 5.5(c) "Safe Harbor" expressly allows unadmitted lawyers to provide legal services on a “tempo­rary basis” if they
    1. associate with an admitted lawyer;
    2. are authorized to appear by a tribunal or reasonably expect to be so authorized;
    3. par­ticipate in an arbitration, mediation, or similar proceeding, provided the services relate to the lawyer’s admitted jurisdiction and pro hac vice admission is not re­quired; or
    4. when the legal ser­vices are “reasonably related to the lawyer’s practice in a jurisdiction in which the law­yer is admitted.”

 

  1. ABA Model Rule 5.5(d)(2) allows an unadmitted lawyer to maintain “a system­atic and continuous” presence in the jurisdic­tion so long as the services offered are authorized by federal or other law.

 

  1. ABA Model Rules 5.5 / Wisconsin - SCR 20:5.5 - Unauthorized Practice of Law; Multijurisdictional Practice of Law

 

(b)  A lawyer who is not admitted to practice in this jurisdiction shall not:

 

(1) except as authorized by this rule or other law, establish an office or maintain a 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 the practice of law in this jurisdiction.

(c) Except as authorized by this rule, a lawyer who is not admitted to practice in this jurisdiction but who is admitted to practice in another jurisdiction of the United States and not disbarred or suspended from practice in any jurisdiction for disciplinary reasons or for medical incapacity, may not provide legal services in this jurisdiction except when providing services on an occasional 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; or

(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; or

(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 to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within subsections (c)(2) or (c)(3) and arise out of, or are reasonably related to, the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted to practice in another United States jurisdiction or in a foreign jurisdiction, who is not disbarred or suspended from practice in any jurisdiction for disciplinary reasons or medical incapacity, 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 after compliance with SCR 10.03 (4) (f), 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 or other rule of this jurisdiction.

(e) A lawyer admitted to practice in another jurisdiction of the United States or a foreign jurisdiction who provides legal services in this jurisdiction pursuant to sub. (c) and (d) above shall consent to the appointment of the Clerk of the Wisconsin Supreme Court as agent upon whom service of process may be made for all actions against the lawyer or the lawyer's firm that may arise out of the lawyer's participation in legal matters in this jurisdiction.

 

  1. AVOIDING UNAUTHORIZED PRACTICE OF LAW IN a multijurisdictional practice

 

  1. Court and Administrative Proceedings.

 

  1. ADR Proceedings.

 

  1. Transactional Representations.

 

  1. AVOIDING UNAUTHORIZED PRACTICE OF LAW DEFENSE TO CLAIM FOR FEES

 

  1. Consultation with Client on Retaining Local Counsel.

 

  1. Engagement Letter Provisions.

 

 

 

Table of Authorities

 

PART 2

  • ABA Model Rules
    • Rule 5.5 - Unauthorized Practice of Law; Multijurisdictional Practice of Law

 

  • Wisconsin Supreme Court Rules
    • SCR 20:5.5 - Unauthorized Practice of Law; Multijurisdictional Practice of Law

 

  • California Statutes
    • Section 1282.4 of the California Code of Civil Procedure (1999)
    • California Supreme Court Rule 9.43 (Formerly Rule 983.4)

 

  • Case Law
    • Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (Cal.), cert. denied, 119 S. Ct. 291 (1998)
    • Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 820 (9th Cir. 2009) (Birbrower does not apply to matters pending in federal courts in California)
    • Prudential Equity Grp., LLC v. Ajamie, 538 F. Supp. 2d 605, 608-09 (S.D.N.Y. 2008) (non-New York lawyer’s participation in New York arbitration was not UPL and did not preclude recovery of attorney’s fees)
    • Winston & Strawn, LLP v. Salt Lake Tribune Publishing Co., LLC, 2006 U.S. Dist. LEXIS 24246, at *11-12, 2006 WL 1129401, at *4 (D. Utah Apr. 24, 2006)
    • Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So. 2d 784, 792-93 (Ala. 2006)
    • Preston v. Univ. of Ark. for Med. Sci., 128 S.W.3d 430, 436-37 (Ark. 2003) (Complaint filed in Arkansas by two Oklahoma lawyers who did not associate with local counsel or seek pro hac vice admission until eight months after filing was a nullity.)
    • In re Pham, No. D2015-01, slip op. (USPTO Feb. 25, 2015) (Suspended license due to improper yet continued to hold himself out as "Associate General Counsel in settlement negotiation.)
    • People v. Magee, 2017 Colo. Discipl. LEXIS 45, 2017 WL 2212042 (Apr. 11, 2017) (Unlicensed practice of law found where attorney licensed in Colorado represented to the public on his LinkedIn profile that he was licensed to practice in Pennsylvania.)
    • Kennedy v. Bar Ass’n of Montgomery Cty., Inc., 561 A.2d 200 (Md. 1989) (out-of-state lawyer could not open local office for practice of exclusively federal law)
    • Sperry, 373 U.S. at 384-86 (Registered U.S. patent attorney who is not licensed in Virginia can properly give legal advice from Virginia office on matters that relate exclusively to patent law)