Concept
Temporary Practice Safe Harbors
Unauthorized practice of law—by lawyers and nonlawyers
Temporary Practice Safe Harbors
Model Rule 5.5(c) answers a question the territorial rules leave open: when may a lawyer licensed elsewhere work in the forum without a local license? A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in the forum on a temporary basis in four listed settings.1 Two threshold conditions apply to all four. The lawyer needs a license somewhere in the United States, and a disbarment or suspension in any jurisdiction, not only the home state, ends the permission. Temporariness is the third limit, and every setting works inside it.
The rule exists because of a gap that Birbrower exposed. A litigator can ask the supervising court for permission to appear in a single matter, but a lawyer who negotiates, arbitrates, and drafts documents has no court to ask, so transactional lawyers had no comparable route.2 The ABA responded to Birbrower and similar cases by amending Rule 5.5(c) to add several safe harbors, and a safe harbor protects a lawyer in a given state only if that state has adopted it.3
Two interests explain the compromise. A client has a claim to counsel of its choice, and many matters cross state lines; a state has an interest in the quality and ethical conduct of the lawyers who work within its borders. Rule 5.5 gives the out-of-state lawyer limited and usually temporary permission, which lowers barriers to interstate practice while preserving the state's interest.4
The permission stays narrow. Each exception is limited in scope and duration, allowing an out-of-state lawyer to work in the state temporarily on a single occasion or for a single matter or series of matters, and a lawyer who wants to practice in a state regularly must still be licensed there.5 Temporary does not mean brief, since practice tied to a single negotiation or litigated matter may recur or run for an extended period. The line no safe harbor crosses is an office or other “systematic and continuous presence,” which Rule 5.5(b) forbids.6
In the rule's order, the four settings are association with local counsel, proceedings before a tribunal, arbitration and other alternative dispute resolution, and work related to the lawyer's home practice. In each, something besides the lawyer's forum license protects the state: a participating local lawyer, a court's authorization, or a tie to a practice the lawyer already has where admitted.
The privilege has a price. As Professor Stephen Gillers observes, the “expanded authority that Rule 5.5 confers comes at a price”: a lawyer who provides legal services in the jurisdiction, even temporarily, must recognize the jurisdiction's interest in disciplining the lawyer for misconduct in connection with those services.7 A separate rule on major disasters, which many states have adopted from an ABA model, sits outside Rule 5.5(c) and comes last in this part.8
Association With Local Counsel
Rule 5.5(c)(1) covers services “undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.”9 Admission is a matter of record that anyone can verify. Active participation is a matter of conduct, and conduct decides whether the safe harbor applies.
The rule asks for participation because a local lawyer who never opens the file gives the state nothing. The client wants to keep the lawyer it trusts, and a multistate matter may not suit local counsel alone; the state wants the work to run past a lawyer it has admitted and can discipline.10 Association serves both interests only when the local lawyer is genuinely involved.
Active participation means sharing responsibility for the representation. The local lawyer reviews the work, knows the client, and answers in the forum for the advice given, so a lawyer who lends a name or forwards the mail has not participated.11 A label of “co-counsel” on an engagement letter settles nothing; the test is what the local lawyer does.
The first Georgia lawyer is practicing in Tennessee in violation of the first prong of Rule 5.5(a), because the Nashville lawyer is a front and no real associate exists. The Nashville lawyer is exposed too: lending a name to another lawyer's unauthorized practice is assisting it, which the second prong forbids.12 The second Georgia lawyer fits the safe harbor, because the local lawyer's involvement puts the matter under supervision by someone the state has admitted and can discipline.
The harbor reaches advice, negotiation, and drafting, but not the courtroom. Association with local counsel does not by itself authorize the out-of-state lawyer to appear before a tribunal, which requires admission pro hac vice.13 A court controls who may appear before it, so a private arrangement between two lawyers cannot replace the court's decision to admit a visitor. A lawyer who negotiates a merger with local counsel's help stays within Rule 5.5(c)(1); the same lawyer arguing in the local trial court needs the court's leave, which the next subsection takes up.
Even a fully participating local lawyer does not make the visitor a member of the local bar. A lawyer who intends a sustained presence must obtain regular admission, since Rule 5.5(b) forbids an unadmitted lawyer to establish an office or other systematic and continuous presence for the practice of law.14 The question is whether the work belongs to a particular matter. A lawyer who works one acquisition from engagement to closing alongside local counsel is inside the harbor; a lawyer who takes a desk at the local lawyer's firm and keeps accepting new local clients has built the presence that association cannot cure.
Money follows responsibility. Under Rule 1.5(e), the out-of-state lawyer and local counsel may divide a fee only if both assume responsibility for the representation, and so share the exposure to malpractice liability, or if the division is proportional to the work each performed.15 A local lawyer who lends a name and collects a share fits neither branch.
Step three does most of the work on exam stems, because the facts usually describe a local lawyer who is named but never involved, and the answer turns on whether anyone in the forum shares responsibility for the client.
Pro Hac Vice Proceedings
Rule 5.5(c)(2) covers services “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.”17 The authorization comes from someone other than the lawyer. Ordinarily it is an order admitting the lawyer pro hac vice, a court's permission for a lawyer licensed elsewhere to appear in one matter. Association with local counsel stopped at the courthouse door; this provision covers the appearance itself.
Courts keep the privilege narrow. Admission pro hac vice is “an accommodation to be made on an infrequent basis rather than a means by which the out-of-state attorney may conduct a practice in the forum state.” The Indiana Court of Appeals adds that it should be “only occasionally permitted as a courtesy towards other state bars and not as a continuing practice to avoid membership in our bar or compliance with our disciplinary rules.” And the Supreme Court emphasized in New Hampshire v. Piper that the decision to grant it “is purely discretionary.”18 A lawyer fully qualified elsewhere therefore has no entitlement to admission. Routine admission would let a lawyer serve the state's clients year after year, one motion at a time, without joining its bar or accepting its disciplinary rules, which is the continuing practice the Indiana court warned against.
A lawyer at the start of a single matter stands on the other side of that line, and the rule protects the work the lawyer must do before the court rules. A lawyer anticipating admission pro hac vice may meet the client, interview prospective witnesses, review documents, and even take depositions in the state, provided the lawyer does so temporarily while reasonably expecting to be admitted.19 Litigation does not pause for a motion, and a rule that barred all forum work until the order issued would stall the client's case, although the court that will supervise the lawyer already has the matter before it.
The word “reasonably” does the policing in that scene. A lawyer who has never applied and has no ground to think the court would admit, or who keeps working in the state after the court has refused admission, holds no expectation a court would call reasonable, and the safe harbor gives no cover. The text also protects a lawyer who is not the one appearing, because it reaches services for “a person the lawyer is assisting” who is or expects to be authorized, and it reaches proceedings pending in “this or another jurisdiction.”20 A lawyer who researches and drafts for a colleague already admitted pro hac vice can therefore rely on the colleague's authorization.
Admission by a federal court works the same way. Rule 5.5(d)(2), taught later in this chapter, recognizes a federal court's authority to admit a lawyer on a regular or pro hac vice basis and does not treat the lawyer's appearance as unauthorized practice, even though the state in which the court sits has not admitted the lawyer.21
A stem that shows an out-of-state lawyer in a local courtroom invites the conclusion that the lawyer is practicing without authorization, and that conclusion is premature. Ask first whether a court or other law has authorized the appearance, or whether the lawyer reasonably expects it will. Rule 5.5(a) forbids practice only in violation of the jurisdiction's regulation of the profession, and an admission order is authorization under that regulation.22 The answer flips when the facts show no order, no pending motion, and no reasonable expectation of one, and it flips again when repeated admissions have turned an accommodation into a standing practice.
Arbitration and Mediation
Rule 5.5(c)(3) covers services “in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction.”24 Two conditions narrow the grant. The services must arise out of or be reasonably related to the lawyer's practice in a jurisdiction where the lawyer is admitted, and they must not be services for which the forum requires pro hac vice admission.25 Together the conditions describe a lawyer whose client's dispute has landed in a private forum in another state and who needs to follow it there without a court's help.
The need follows from what made the previous setting work. A court that will hear the case can admit the visitor and watch the work, but an arbitral tribunal has no authority to grant effective pro hac vice admission.26 Birbrower shows the result: the firm's work was exclusively non-litigation, including an arbitration, and without a supervising court it had no authority to which it could appeal for admission.27 The rule fills that gap and ties the permission to the lawyer's practice in a state of admission.
That scene is the case the rule has in mind. A lawyer who represents a client in the home state may continue the representation when the client's dispute gives rise to an ADR proceeding in another state.28 The client's interstate dealings, not the lawyer's pursuit of local business, carried the dispute across the border, and the home-practice condition measures that derivative character. The same reasoning covers a mediation.
One more question sorts the cases: does a tribunal already hold the dispute? If the matter is pending before a tribunal in the state, any ADR proceeding is collateral to the ongoing litigation or contested administrative case, and the out-of-state lawyer must have been admitted pro hac vice before appearing before that tribunal and taking part in the collateral ADR efforts.29 If the matter is not pending in a tribunal, and may never be, as when arbitration or mediation substitutes for litigation, pro hac vice admission is not expected and may not be available.30 The rule's last condition makes the sort, because a forum that requires its own admission for the lawyer's participation has taken the services outside the harbor. A lawyer could not escape a court's control over who appears in its cases by calling a court-ordered session a mediation.
A lawyer so placed is not stranded, because another setting may apply. If the lawyer has moved for pro hac vice admission and reasonably expects the court to grant it, the services fall under Rule 5.5(c)(2), which extends to lawyers who are admitted or reasonably expect to be.31 The two settings divide the territory by the source of supervision: where a court supervises the matter, the lawyer uses pro hac vice, and where no court does, the ADR safe harbor looks to the lawyer's home practice. A lawyer who fits neither is practicing in the forum without authorization, which the first prong of Rule 5.5(a) forbids.32
Like every temporary-practice setting, this one cannot carry a lawyer into settled practice in the forum. The lawyer may not establish a systematic and continuous presence in the state or represent that the lawyer is admitted there.33 A lawyer who follows one client's arbitration to Omaha has done neither. A lawyer who uses a string of Omaha arbitrations to build a local clientele has moved from the temporary services the rule allows to the presence that Rule 5.5(b) forbids.
Step four does the sorting on exam stems. A fact pattern that says mediation or arbitration invites the safe harbor, and the fact that decides the answer is whether a court in the forum already has the underlying dispute. If one does, the label on the session changes nothing, and the lawyer needs the court's admission.
Related to Home Practice
Rule 5.5(c)(4) is the catch-all. It covers services that “are not within paragraphs (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.”35 The tribunal and ADR settings claim their own ground, so what remains is chiefly advice, negotiation, and transactional work that no court or arbitral panel is supervising. The second condition does the real work, because it names what must connect the forum work to something the lawyer already does elsewhere. The preconditions common to all of Rule 5.5(c) still apply: admission and no disbarment or suspension anywhere, and temporary services.36
The typical case is a regular client whose business carries a matter across a state line. A lawyer admitted in another state who regularly represents a client there may enter a second state temporarily to advise or represent that client in a transaction being negotiated or completed there, and those services plainly are not unauthorized practice.37 Minnesota's disciplinary officer gave the point concrete form. The provision may allow a Chicago attorney to represent a Chicago real estate developer in negotiating a commercial land purchase in Minnesota, but it does not allow the same lawyer to represent a Minneapolis resident buying homestead property in Burnsville, a purely Minnesota transaction.38 The lawyer's field is real estate in both situations, and what moves the answer is where the work came from. The developer is the lawyer's own client from the Illinois practice, and its dealings carried the work to Minnesota. The Minneapolis buyer is a stranger with a local matter that has no tie to anything the lawyer does in Illinois.
The exception protects a client whose existing matter happens to cross a state line, because that client should not have to replace a trusted lawyer at the border. Where a regular client's business brought the work to the forum, the lawyer has not gone looking for local customers. A lawyer who takes on strangers with purely local business has no home practice to explain the presence. If “reasonably related” covered any subject in which the lawyer has expertise, every lawyer could serve that field in every state, and the admission requirement would stop doing any work.
Courts divide over how far “reasonably related” stretches. In In re Charges of Unprofessional Conduct No. 39302, a Colorado lawyer whose practice centered on environmental law, with judgment-collection matters collateral to it, advised his in-laws by e-mail over several months on a Minnesota judgment-collection dispute and tried to negotiate a resolution with a Minnesota attorney.39 The majority held that this was unauthorized practice. The in-laws were not Colorado residents, had no prior attorney-client relationship with him, and presented a matter with no interstate or federal-law dimension, so the work was unrelated to his Colorado practice. The majority also refused to read the exception to cover expertise in any subject matter, because that reading would let the exception swallow the rule.40
The dissent read the same text differently. It described “reasonably related” as a broad catch-all meant to reach circumstances like these, since the lawyer had experience in the very field of judgment collection, including multiple trials and filings. The lawyer had not reached into Minnesota to attract a client, because the in-laws sought him out while he was in Colorado.41 The dissent answered the swallowing concern by agreeing that the exception, though broad, does not encompass subject matters unrelated to the lawyer's practice.42 Both opinions accept the same outer limit and differ over what to look at in deciding whether the work lies inside it. The majority looked to the client's relationship with the lawyer and the matter's connection to something beyond the forum state, and the dissent looked to the lawyer's field of experience and to who initiated the contact.
The Restatement of the Law Governing Lawyers supports the broader reading. Its illustration involves an Illinois trusts and estates lawyer who delivers a codicil in person to a longtime client who has moved to Florida. The client introduces a Florida friend, who asks the lawyer to prepare estate-planning documents; the lawyer drafts them in his Illinois office, keeps in touch by telephone and mail, and returns to Florida for the signing, and the Restatement treats the services for both clients as permissible.43 What appears pivotal is that the lawyer's regular field of practice was involved and that the out-of-state client initiated the request, so the lawyer was not holding himself out as a lawyer in the foreign state.44 On facts like the Chicago developer's, both camps would reach the same result. The split matters at the margin, where a lawyer has experience in a field but the client has no prior tie to the lawyer's practice, and an answer there should say that courts read the exception differently.
The exception matters only when the lawyer provides services in the forum. The source of the governing law does not decide that question; the controlling fact is the lawyer's geographic or virtual location when giving the advice.45
Temporariness remains a separate requirement even when the work is related. A lawyer who is not admitted in the state may not establish a systematic and continuous presence there for the practice of law, and that presence includes a virtual one built through concerted and regular use of electronic media.46 One client's matter that recurs or runs for an extended period can still be temporary, while a lawyer who uses a single related engagement to take on a stream of forum clients has become a standing part of the local market.47
A lawyer whose forum work fits neither this exception nor any other authorization is practicing in violation of the first prong of Rule 5.5(a).48 Step four does the work on exam stems, and the usual error is to treat the lawyer's expertise, or the bare label “related,” as enough. The facts that carry weight are the ones the two Minnesota opinions argued over: whether the client came from the lawyer's home practice or from the forum, and whether the lawyer's regular field was engaged.
Major Disaster Relief
Rule 5.5(a) forbids a lawyer to practice law in a jurisdiction in violation of that jurisdiction's regulation of the profession, and the territorial reading taught earlier measures practice by where the lawyer is, physically or virtually, when giving the services.50 A major disaster puts two groups in the worst position under that reading. Survivors may urgently need legal help that willing out-of-state lawyers could give pro bono, and lawyers from the stricken area may be scattered across neighboring states while wanting to keep serving their clients. Applied strictly, a state's unauthorized practice rules would block both groups.
Following an ABA model, many states now allow temporary practice by out-of-jurisdiction lawyers after a major disaster. A lawyer not admitted to practice may enter the state to provide pro bono legal services to those affected by the disaster, or may temporarily resume the practice of law for clients of the lawyer's home-jurisdiction practice where the disaster occurred.51 This is a court rule separate from Rule 5.5(c), adopted state by state, so a disaster problem is not solved by hunting for a fit among the four settings above, and an answer should attribute the permission to the adopting state.
The relief switches on only after the highest court of the jurisdiction where the disaster occurred determines that a major disaster exists.52 The gate matters because the rule suspends the ordinary admission requirement, and the court that regulates the profession, not the lawyers who would benefit, decides when conditions justify the suspension. Once the determination is made, the rule grants two separate permissions. The first lets a lawyer not admitted in the state provide pro bono services to people affected by the disaster, and the services must be given under the assignment and supervision of an established not-for-profit bar association, pro bono program, or legal services program, or of an organization the state's highest court has designated.53 The supervising organization chooses what the volunteer handles, and the pro bono limit keeps the relief from becoming a back door into the state's paying market.
The second permission runs to the displaced lawyers. A lawyer admitted elsewhere may provide legal services in the state on a temporary basis if they arise out of and are reasonably related to the lawyer's practice in the area where the disaster occurred, which lets the lawyer open a temporary office and keep serving existing clients of that practice.54 Those clients did not shop for a new lawyer, because the disaster moved the lawyer, and forcing them to start over with strangers in the middle of a crisis would protect no one.
A stem about a visiting lawyer helping storm victims invites the assumption that the disaster rule covers whatever the volunteer does next, and the court appearance is where that assumption fails. The rule does not permit court appearances unless the lawyer is admitted pro hac vice or the state's highest court has granted blanket permission to appear.55 A court decides who may appear before it, so a general permission to practice during an emergency cannot replace the court's own judgment about the lawyer standing in front of it.
Like the other exceptions to the admission requirement, disaster relief is limited in scope and duration, and a lawyer who invokes it must accept that the state may discipline the lawyer for misconduct in connection with the services.56