Hope Todd , the D . C . Bar ’ s associate director of legal ethics , called attention to Opinion 495 in her November / December 2022 column in “ Washington Lawyer .” Todd cited a disciplinary case in which the Maryland Court of Appeals determined that a D . C . licensed attorney , who restricted her practice to D . C . clients and cases but worked out of a Maryland office , had technically violated that state ’ s UPL rules . The court declined to impose sanctions , but it questioned the rules ’ rigid prohibitions .
Attorneys residing in the District but licensed elsewhere also risked violating D . C . UPL rules during the pandemic . District of Columbia Court of Appeals Rule 49 governs the unauthorized practice of law and would not accommodate most of the remote work necessitated by the pandemic .
In response , the court ’ s Committee on Unauthorized Practice of Law issued an emergency opinion stating that attorneys residing in the District but licensed elsewhere could telework during the pandemic under the “ incidental and temporary practice ” exception in Rule 49 ( c )( 13 ). The opinion provided a narrow exception , one that ended with the lapsing of the public emergency orders in November 2022 .
HOPE TODD D . C . Bar , Regulation Counsel
Todd , who served on the APRL subcommittee responsible for drafting the proposed revised Model Rule 5.5 and accompanying report , says that changes in bar admission requirements impact the question of whether multijurisdictional practice should be permitted . “ We ’ ve moved to the Uniform Bar Examination in more than 40 jurisdictions , where everybody says , ‘ This is the baseline : you ’ ve graduated from an ABA-accredited law school somewhere in the country , and now we ’ re all taking the same bar exam , and we all have more or less the same character and fitness .’”
The rapid change brought about by the pandemic represented an acceleration in trends that were already in motion .
New Hampshire passed a law on license reciprocity in July requiring professional organizations to issue licenses to attorneys presenting an active license in good standing from any other jurisdiction whose license requirements are substantially similar to New Hampshire ’ s .
Other states have liberalized the kind of remote practice described in the Maryland case . Lynda C . Shely of The Shely Firm , PC in Scottsdale , Arizona , who serves as chair of the ABA Standing Committee on Ethics and Professional Responsibility , supported Arizona ’ s amendment to its UPL rules allowing attorneys licensed out of state to practice remotely in Arizona . The success of the policy ’ s implementation has helped
LYNDA SHELY The Shely Firm , PC fuel Shely ’ s interest in a broader liberalization of multijurisdictional practice ; she served with Todd on APRL ’ s drafting subcommittee .
“ I would hope that most attorneys recognize that the rules are out of date and those arbitrary state barriers no longer exist with the internet ,” Shely says . She acknowledges that there are questions about multijurisdictional practice that remain unresolved , including which jurisdiction would take on the responsibility and expense of prosecuting ethics violations , which client protection fund would pay on claims , what impacts multijurisdictional practice would have on malpractice insurance rates , and whether out-of-state practitioners should be required to register with their local jurisdiction .
“ I think all of those questions are answerable ,” adds Shely . “ Change , in our profession , happens glacially . The irony is that we have had temporary practice rules for a while now .”
She lists exceptions allowing attorney military spouses to practice temporarily in jurisdictions where their spouse is temporarily deployed , for federal lawyers to practice within states where they are not admitted , and other pandemic- and disaster-related exceptions . “ If I ’ m competent to practice temporarily , why aren ’ t I competent to practice permanently the law of another state ?” she asks .
The strength of the APRL proposal lies in its reliance on two basic principles : disclosure and competency . Attorneys would be required to communicate their license status clearly and to only undertake matters they can competently manage . The latter requirement is one that attorneys already follow under existing professional conduct rules .
It ’ s important to note that the proposed revised Model Rule 5.5 would not completely eliminate barriers to multistate practice . APRL ’ s proposal would still require valid licensure within a jurisdiction to practice before a court . Courtroom practice would employ the current temporary admission and pro hac vice rules , preserving the local court ’ s authority to control who is authorized to appear before it .
Restrictions on practice have , historically , been used to limit access to the opportunities the profession provides . The APRL report accompanying its proposal notes , for example , that in 1914 the New York County Lawyers Association launched the first UPL campaign to “ curtail competition from title and trust companies .”
As for the business interests involved in limitations , Shely responds , “ That ’ s not why we have regulation in the profession . It ’ s not for lawyer protection ; it ’ s for client protection and making sure that the people providing legal services are competent and accountable .”
Reach D . C . Bar staff writer Jeremy Conrad at jconrad @ dcbar . org .
This article first appeared in the September / October 2023 issue of “ Washington Lawyer .” Reprinted with permission from the District of Columbia Bar .
8 THE GAVEL