Concept
Presence and Holding Out
Unauthorized practice of law—by lawyers and nonlawyers
Presence and Holding Out
Rule 5.5(b) turns from the work a lawyer does to the footprint the lawyer leaves and the message the lawyer sends. It begins by naming the lawyers it governs: “A lawyer who is not admitted to practice in this jurisdiction shall not:”1 Two prohibitions follow. The lawyer may not establish an office or other systematic and continuous presence in the jurisdiction for the practice of law, and may not hold out to the public as admitted there.2 The class is defined by the absence of admission in the forum, so the rule reaches every lawyer who lacks it, however sound the lawyer's standing at home. Unlike Rule 5.5(a), which takes its content from whatever a jurisdiction's own regulation of the profession forbids, these two prohibitions are written into the rule itself.3
The first prohibition marks the outer edge of the rule. The line that cannot be crossed is the establishment of an office or other “systematic and continuous presence” in the state, and no safe harbor covers representation of that kind.4 The exceptions in Rule 5.5(c) are aimed at something else: occasional, episodic practice in another state that relates to the lawyer's activities in the admitting jurisdiction. A lawyer admitted only in South Dakota who travels to Minnesota to take a deposition in a South Dakota case is not subject to discipline for unauthorized practice there.5 A lawyer who rents space in Minnesota and takes on local clients is doing something of a different kind. The general rule remains that a lawyer who wants to practice regularly in a state must be licensed in that state, and the exceptions that allow temporary services are limited in both scope and duration.6
The two prohibitions guard different things, and a lawyer can violate one without violating the other. The first asks whether the lawyer has become a continuing presence in the state. The second asks what the lawyer has told the public about the lawyer's license, because a false impression that the lawyer holds the forum's license misleads clients about the protections a license is supposed to supply. Each gets its own treatment below, beginning with the bar on a settled presence.
Systematic and Continuous Presence
Rule 5.5(b)(1) bars a lawyer who is not admitted in the jurisdiction from establishing an office or other “systematic and continuous presence in this jurisdiction for the practice of law,” unless the Rules or other law authorize it.7 The opening clause, “except as authorized by these Rules or other law,” leaves room for the authorizations that later sections take up.8 This prohibition asks a different question from whether a particular service counts as practice in the state. That question looks at one piece of work. This one looks at the lawyer's footprint: whether practice has become a settled, ongoing feature of the state's legal market. A single trip can raise the first question without coming near the second, which is why safe harbors for temporary practice can exist at all.
The line falls at settled practice because that is where the case for admission is strongest. A lawyer who moves into a state to serve its residents practices as a local lawyer does, and the state's admission requirement exists for that lawyer. An occasional visit tied to a matter elsewhere touches the forum only briefly and offers residents no continuing service. If a license from another state could support a standing practice, admission would bind only the lawyers who chose to comply with it. The rule therefore sends the lawyer who intends to stay to the bar's front door.9
The New York license gives the lawyer no cover, because the prohibition is aimed at exactly the lawyer who is licensed elsewhere and not in the forum. There is no safe harbor for an office or other systematic and continuous presence.10
A lawyer does not need to rent space to settle into a state. The comment to Rule 5.5 explains that presence may be systematic and continuous even if the lawyer is not physically present in the state.11 The prohibited presence therefore includes its electronic equivalent: the concerted and regular use of electronic media to establish a virtual presence within the state's borders.12 A rule that counted only physical offices could be avoided with a laptop. A lawyer who serves a standing clientele in the state through a website, video meetings, and continuing messages offers the same open-ended service as one with a storefront.
Regularity is what separates a virtual presence from a stray message.
The other pole of the rule is occasional, episodic practice, and the safe harbors in Rule 5.5(c) are aimed at that kind of work. When litigation is proceeding in South Dakota and a deposition must be taken in Minnesota, the lawyer admitted only in South Dakota who travels there to take it does real legal work in Minnesota.13 Yet the work has a single source, the South Dakota case, and ends when the deposition ends. Nothing about the trip offers Minnesota residents a continuing lawyer, and a continuing lawyer is the risk this prohibition addresses.
Temporary does not mean brief. Temporary practice may recur or run for an extended period when it relates to a single negotiation or litigated matter.14 A lawyer who makes repeated trips to depose witnesses over the life of one case is in a different position from a lawyer whose office takes new local matters year after year, because the first presence has a built-in end point and the second has none. Duration alone does not settle the question. What matters is whether the practice is tied to a particular matter connected to the lawyer's home practice or has become open-ended service to the state's residents.
The fourth step explains how the rest of the chapter works. The temporary-practice exceptions are limited to practice on a temporary basis, so each one assumes that the lawyer has not established this kind of presence.15 Good standing elsewhere does not change the answer, because the prohibition is aimed at lawyers who are not admitted in the forum. The second prohibition in Rule 5.5(b), holding out as admitted, is a separate wrong that can occur without any office, and it comes next.
Holding Out as Admitted
Rule 5.5(b)(2) forbids a lawyer who is not admitted in the jurisdiction to “hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.”17 Where the ban on a systematic and continuous presence looks at the lawyer's footprint, this one looks at the lawyer's message: what the public is led to believe about the lawyer's license. A lawyer can therefore violate it with no office, no forum client, and no completed legal service, because the solicitation alone may be enough.18
The rule polices what a lawyer says, and not only what a lawyer does, because a license works as a promise the public has little means to check. A person who sees a lawyer advertising in the state's market reasonably assumes that the lawyer has passed the state's admission screen and answers to its disciplinary system, and the decision to hire rests on that assumption. If the assumption is false, the client has taken on the risks licensing exists to prevent before any work begins. The rule therefore treats such conduct as the equivalent of presence in the state, and so as unauthorized practice in its own right.19
The text uses two phrases, and each does work. To “hold out to the public” reaches the lawyer who addresses a general audience, as through advertising. The words “or otherwise represent” are broad enough to reach any other statement, including a private assurance to a single prospect that the lawyer belongs to the local bar.20 The false impression is the same in both cases. The lawyer also need not claim local licensure in so many words, because a communication can create the impression through what it leaves out.
That is how targeted solicitation enters the analysis. Out-of-state lawyers who solicit a state's residents and entities, and who do not candidly disclaim admission in that state, may be regarded, on the strength of their own affirmative advertisements, as holding themselves out as admitted there.21 Two facts carry that conclusion. The first is targeting: a solicitation addressed to the forum's residents tells the audience that the lawyer is offering to serve them in particular, so a reader may take the sender for one of the state's lawyers. The second is silence about where the lawyer is licensed, because a candid statement of admission elsewhere removes the false inference that the first fact invites. The word may matters on an exam. The inquiry is the overall impression the communication creates, so a stem about a lawyer's marketing is asking you to read the communication for its target and for what it says about admission.
The candid disclaimer cures the misrepresentation and nothing more. It removes the false impression that Rule 5.5(b)(2) targets, but it supplies no authorization for the work the lawyer then does. A lawyer who announces admission only elsewhere and then settles into a standing practice in the forum still falls under the ban on a systematic and continuous presence.22 A lawyer who does forum work outside any recognized exception still faces the question Rule 5.5(a) asks about whether the work was authorized.23 Authorization comes from the safe harbors and exceptions that follow in this chapter, which is why the lawyer in the second scene can communicate honestly and still must stay inside them.
Holding out has a second consequence that reaches past the rule itself. A lawyer who offers to provide any legal services in a jurisdiction is subject to that jurisdiction's disciplinary authority under Rule 8.5(a), even though the lawyer is not admitted there, so the advertisement that breaches Rule 5.5(b)(2) also places the lawyer within reach of the state's disciplinary system.24 A state that could act only against the lawyers it had admitted would have no hold on the unadmitted lawyer who advertises into its market. The later section on disciplinary authority develops the scope of that reach.