Limits on Temporary Practice

Every safe harbor in Rule 5.5(c) shelters a lawyer who is, by definition, not admitted in the state, so Rule 5.5(b) keeps governing that lawyer through the whole visit. Its lead-in addresses “[a] lawyer who is not admitted to practice in this jurisdiction” and lists what that lawyer shall not do.¹ Two prohibitions follow: the lawyer may not establish an office or other systematic and continuous presence for the practice of law, and may not hold out to the public, or otherwise represent, that the lawyer is admitted there. A third limit lies outside paragraph (b): a visitor who provides legal services in the state answers to its disciplinary system for them.²

The three limits enforce one premise. The exceptions to the licensing requirement are limited in scope and in duration, allowing an out-of-state lawyer to provide services temporarily, on a single occasion or for a single matter or series of matters, while the general rule remains that a lawyer who wishes to practice regularly in a state must be licensed there.³ The first limit keeps a visit from becoming a regular practice, the second keeps a visitor from claiming a status the visitor lacks, and the third keeps the visitor answerable to the state for the work done there.

No Systematic Presence

Rule 5.5(b)(1) forbids a lawyer not admitted in the state, “except as authorized by these Rules or other law,” to “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.”⁴ The clause marks the outer edge of temporary practice. The safe harbors in paragraph (c) shelter a lawyer who comes for a matter and leaves when it is done, while paragraph (b)(1) addresses the lawyer who has stopped visiting and started staying. Its opening exception leaves room for presence that the Rules themselves authorize, and the in-house counsel provision of Rule 5.5(d)(1) is one such authorization: it lets a lawyer admitted and in good standing in another United States jurisdiction serve her employer or its organizational affiliates, unless the state requires pro hac vice admission for the services.⁵

The temporary safe harbors authorize nothing comparable. The line that cannot be crossed is the establishment of an office or other systematic and continuous presence, and there is no safe harbor for that type of representation. The exceptions in paragraph (c) are aimed at occasional, episodic practice related to the lawyer’s activities in her admitting jurisdiction.⁶ If litigation is proceeding in South Dakota and a deposition must be taken in Minnesota, a lawyer admitted only in South Dakota who travels there would not face discipline for unauthorized practice in Minnesota.⁷

The deposition trip fits because it is an episode tied to a matter that will end. A lawyer may return for a series of matters and remain a visitor,⁸ but a lawyer who has built a standing practice in the state, whether from a leased office or from something that works like one, has become a local practitioner in everything but admission. Days spent in the state are therefore not the test. The arrangement is.

Admission pro hac vice is subject to the same limit. One court puts the point this way: “it should be stressed that pro hac vice admission of an out-of-state attorney 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.”⁹ The Indiana Court of Appeals adds that such admission “should only be 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.”¹⁰

Hypothetical Illustration

Ostrander, admitted only in Oregon, spends a week in Boise, Idaho, taking depositions in a pending case, works from a hotel room, and flies home when the last witness is done. Over the next year the same client sends two more Idaho disputes, and Ostrander makes three more short trips, each tied to one case and each ending when its task is finished. Then Ostrander leases a suite in Boise, hangs a sign on the door, and meets Idaho clients there every week on whatever matters they bring. The hotel-room trips are temporary practice, because each is an episode attached to a matter and nothing remains in Idaho when the matter closes. The leased suite is an office from which Ostrander practices law on a standing basis, so paragraph (b)(1) is violated from the day the weekly practice begins, and no safe harbor rescues it.

The ban also reaches a lawyer who never enters the state. Comment 4 explains that “[p]resence may be systematic and continuous even if the lawyer is not physically present here.”¹¹ The prohibited regular presence includes the equivalent of a physical one, created through concerted and regular use of electronic media to establish a virtual presence within the state’s borders.¹² This follows from the location principle. Legal advice given to a client in the lawyer’s home state is not practice in another state, even when the advice concerns that state’s law, because what determines authority is the lawyer’s geographic or virtual location when providing the services, and the source of the law does not.¹³ If only an office counted, a lawyer could assemble the same standing practice from a website, a local telephone number, and daily video calls.

Compare a Colorado lawyer who advises a Colorado client about Utah law from her Denver office. She has created no standing arrangement in Utah, and the advice is given from her home state, where the practice occurs.¹⁴ Both she and Marchetti use electronic media, and neither enters Utah. The difference lies in the pattern of the work. An exam stem that stresses the lawyer never set foot in the state invites the answer that no presence exists, and that answer is wrong when the facts describe a standing, concerted, regular arrangement.

No Holding Out

Rule 5.5(b)(2) forbids a lawyer 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.”¹⁶ The clause covers two kinds of conduct. Holding out to the public is a message aimed at an audience, such as an advertisement, and the words otherwise represent reach a statement made in any other setting. Both turn on the status the lawyer claims.

The clause protects an interest that the ban on a systematic presence does not. That ban looks for a fixture in the state or a standing pattern of work, but a lawyer can reach a state’s residents through advertising long before any fixture exists. The rule treats such conduct as the equivalent of presence in the state and as unauthorized practice there, so a lawyer with no office at all can violate it.¹⁷

Solicitation is the standard illustration. Out-of-state attorneys who solicit state residents and entities, and who do not candidly disclaim admission to practice in the state, might be regarded by their affirmative advertisements as holding themselves out to the public as admitted there.¹⁸ Two facts carry that illustration: the advertising is directed at the state’s residents, and it comes without a candid disclaimer of admission. The disclaimer matters because the harm the clause targets is a false impression, and an accurate statement of where the lawyer is licensed removes it.

Adeyemi’s disclaimer answers only the holding-out clause. Her Utah work must still fit a safe harbor, and the ban on a systematic and continuous presence still applies to her.¹⁹ Whitcomb faces a second consequence as well. Because he offered legal services in Utah, he may be held subject to Utah’s disciplinary jurisdiction under Rule 8.5(a), a point the next section develops.²⁰ An exam stem that stresses the lawyer never entered the state or opened an office is describing the wrong clause, because the advertisement is the conduct that matters here.

Disciplinary Exposure

Rule 5.5 gives out-of-state lawyers freedom to practice temporarily, and in Professor Stephen Gillers’s words that freedom “comes at a price. A lawyer who wishes, even on a temporary basis, to provide legal services in the jurisdiction must recognize the jurisdiction’s interest in disciplining him or her for misconduct in connection with those services.”²² The safe harbors decide whether a visit is permitted. Discipline decides whether the visitor, once at work, answers to the state for how the work is done, and the answer is yes. Lawful practice under a safe harbor therefore does not remove the lawyer from the state’s disciplinary reach.

Rule 8.5(a) extends that reach to the lawyer who has done nothing but offer services. An out-of-state lawyer who solicits state residents may be held subject to the state’s disciplinary jurisdiction under Rule 8.5(a) by having “offer[ed] to provide any legal services in this jurisdiction.”²³ Exposure thus rests on two kinds of contact with the state. A lawyer who provides services there, even temporarily, answers for misconduct connected with them, and a lawyer who offers services there falls within the state’s jurisdiction before any work begins.

A state that admits temporary visitors without examining them keeps one check on the lawyers who serve its residents, which is the power to discipline them afterward. If an unlicensed visitor could mishandle a client’s affairs in the state and answer only to a regulator elsewhere, the state’s residents would carry the risk that licensing exists to reduce. Subjecting the visitor to its authority is part of what makes the state’s welcome workable.

Hypothetical Illustration

Teague, admitted only in Oregon, spends a week in Reno closing a purchase for a longtime Oregon client, work that falls within the home-practice safe harbor. Over lunch he describes the client’s confidential plans to a Nevada broker who has no need to know them. Nevada holds disciplinary authority over him for that conduct, because he provided legal services in the state and the lawful character of the visit does not change that fact. Bergstrom, also admitted only in Oregon, answers a similar client’s question about a Nevada statute by email and telephone from her Portland office. She never enters Nevada, advertises nowhere in it, and offers her services to no one there. Nothing she did provides or offers legal services in Nevada, so nothing connects her conduct to Nevada’s disciplinary authority.

The two lawyers share the same admission and the same home state, and the difference lies in where each stood when serving the client and in whether either offered services to Nevada’s residents. An exam stem that establishes that a visitor’s work fit a safe harbor and then asks whether the forum may discipline is testing whether you treat permission as immunity. Permission shows only that the practice was not unauthorized under Rule 5.5, while disciplinary exposure follows from providing or offering services in the state.