Where Can a Nys Licensed Attorney Practice Without Taking the Exam Again?
Ball of Confusion: Practicing Police force from Your Second Home in Another State
By Ronald C. Minkoff
Practicing law has been very, very practiced to you. Through lots of difficult piece of work over forty years, you have built up a stable of good, steady clients, and have earned enough money to offset thinking seriously about retirement. You have always lived and worked in the same Northern state — the only state in which you are admitted to practice. Nonetheless, despite global warming, the Northern winters seem to go longer and more depressing each twelvemonth, and then you've decided to spend the winter months in your second home most a beautiful golf course in a squeamish, warm Southern country. You still feel also immature and healthy to retire completely, just you lot have little desire to go through the grueling process of getting admitted in the Southern state, including (Heaven forbid!) sitting for the Bar exam, unless someone says you must. Your long-time house is willing to permit you practice remotely from your second home, equally long every bit doing and then will not get you or the firm into problem.
What are your options? Can you follow your middle and work from your second home? Or are you stuck with the brutal winters of your home state?
Defining the Problem
The trouble, of course, is that practicing in the Southern state — no affair how circumscribed — might found the unauthorized do of police force (UPL). Every land and territory in the U.S. has a statute prohibiting UPL, and about if not all make it a criminal crime. When most lawyers think of UPL, they think of a fraudster who has never been licensed in whatever jurisdiction taking advantage of innocent people by practicing law without a license. But that is just one kind of UPL. The other kind is when a lawyer who has been licensed in one state practices in a land or territory where he or she has non been admitted. Both types of UPL are treated the same under well-nigh UPL statutes, as well equally the Model Rules. See Model Rule v.v(a) ("A lawyer shall non do police force in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing and then").
This second kind of UPL — let's call it "interstate UPL," though it applies equally to lawyers admitted in other countries — is at issue when practicing from your second habitation. Interstate UPL did not receive much attending until 1997, when the California Supreme Courtroom issued its landmark decision in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998). There, the Court plant that a New York law house engaged in UPL, and thus could non enforce its fee understanding, considering the firm had its New York-admitted lawyers come to California to stand for a California customer in preparing for a California mediation based on a contract governed by California law. Nearly significantly, the Court found that lawyers can be found to take engaged in interstate UPL fifty-fifty if they hired local counsel and even if they never set foot in the state, but only made phone calls or sent faxes or emails into the land.
This led to a great deal of mitt-wringing, as lawyers who regularly practiced beyond land lines — particularly transactional lawyers who cannot obtain pro hac vice admission — worried that their actions would result in disciplinary or fee payment bug. This acquired the ABA to spearhead a series of rules over the past 15 years that have allowed lawyers to practice across country lines more freely.
We will discuss these rules in their proper contexts afterwards. But the problem of interstate UPL has withal not ceased beingness a threat. Only earlier this twelvemonth, the Minnesota Supreme Court, in In re Charges of Unprofessional Conduct in Panel File No. 39302, 884 Due north.Westward.2d 661 (Minn. 2016), disciplined a Colorado-admitted lawyer who agreed to represent his in-laws in a debt collection matter in Minnesota. Though he never set human foot in the state, he negotiated by telephone and email, but was unable to become the thing settled. To add insult to injury, his opposing counsel — who had warned him about UPL when commencement contacted by him — filed an ethics complaint, and he ended upwardly existence subjected to private subject area. The reason, said the Court, was that the dispute "was non interjurisdictional: it involved just Minnesota residents and a debt arising from a judgment entered in a Minnesota courtroom." Id. at 666. In curt, as in Birbrower, the Court found that a lawyer can commit interstate UPL without always setting foot in the land where the improper exercise takes identify.
Addressing Specific Scenarios
Now that we have defined the issue, nosotros want to answer the questions you may inquire when considering whether you should try to practice from your second dwelling in a jurisdiction where you are not admitted to do.
Q: Why don't I just get admitted? Can't I just waive in?
This may be an option, depending on the state in which your second home is located. In 2012, the ABA adopted a Model Rule on Access by Motion, which allowed a lawyer in skillful continuing in all U.Due south. jurisdictions (states, territories or the District of Columbia) in which they are admitted to do, and not field of study to any pending disciplinary complaints, to be admitted on motion (i.e., without taking the state'due south Bar exam) in another jurisdiction as long as they can show that they had "engaged in the active practice of law" in one or more U.Southward. jurisdictions for 3 of the past five years. (Some states, including New York, require practice for 5 of the by seven years [run across 22 NYCRR §520.10(a)(two)]; Arizona, 1 of those states, recently recommended shortening this flow to conform to the ABA Model Rule.) While the vast majority of jurisdictions allow some course of admission on motion, there are still several which practise not: for example, California, Louisiana, South Carolina and Florida, concerned about competition from "snowbird" lawyers, crave anyone seeking admission to the Bar to take the land Bar exam, no thing how many years they have practiced. In any event, obtaining Bar admission, whether by motion or through the more traditional process, can take several months — it more often than not will require a review of your grapheme and fettle to practice — and thus requires a great deal of advance planning.
Q: If I'm an experienced lawyer, won't they let me exercise in the country while my Bar access is pending?
Again, the ABA took the lead on this in 2012, adopting a Model Dominion for Practice Pending Access. This would permit you to do in a state for upwardly to i year following your submission to state regulators of proof that yous have practical for access in that country. The Model Rule requires lawyers to show they are in good continuing in their home jurisdiction, that they take no pending complaints confronting them, that they will be supervised by local counsel, and that they accept practical for bar admission within 45 days of establishing "an office or other systematic and continuous presence for practicing law in the country." Only viii states have adopted a version of this rule applicable to all lawyers, while approximately 20 others have limited information technology to military personnel and their spouses, who oft take to motility on brusk notice. Many states are continuing to study practice pending access, simply some — including New York — have rejected it outright because of the business concern that it circumvents the authorization of state Bar Examiners and does not require a sufficient graphic symbol and fitness cheque. Fifty-fifty where practice pending admission is available, it is only a temporary solution: you must successfully complete the admissions process within the designated time frame or lose your eligibility to practice.
Q: Hey, I really don't want to go to all this trouble of getting admitted. Isn't at that place a rule that allows me to practice temporarily where my second home is located?
This brings us to the most important result of Birbrower: the ABA'southward adoption of the temporary do rule independent in Model Rule 5.5(c). With New York's recent adoption of a courtroom dominion on the subject field, 47 states now permit temporary practice forth the lines suggested in the Model Dominion. That Rule continues to prohibit interstate MJP, but creates four safe harbors that allows lawyers to "provide legal services on a temporary ground" in a jurisdiction where they are not admitted: (i) when they associate with local counsel who actively participates in the matter; (ii) when they are assisting or participating in an actual or potential legal proceeding, generally by obtaining pro hac vice admission; (3) when they are participating in an arbitration or mediation; and (four) where the legal services in the second state "arise out of or are reasonably related to the lawyer'southward practice in a jurisdiction in which the lawyer is admitted to do."
This 4th rubber-harbor covers a great bargain, allowing transactional lawyers in item a lot of elbowroom to practice across state lines. Just when because practice from your second home, you should have care non to care for Model Rule five.5(c) or its local equivalent too cavalierly. For instance, some states, such equally Florida, prohibit you from opening a permanent law office, or from offer legal services to local residents y'all had not previously represented (a bad idea whether the rules specifically prohibit it or non). See, e.m., Gould 5. Harkness, 470 F.Supp.2d 1357 (South.D. Fla. 2006) (New York-licensed lawyer may not advertise in Florida for prospective clients who might need help with New York legal matters or federal administrative practice). Others require you to state on correspondence that y'all are not admitted to practise in that state. Nonetheless others, like Connecticut, let temporary practice just if your home jurisdiction does. No matter which land you are in, you should avoid hanging a shingle outside your 2d dwelling house, setting up a storefront legal function nearby, or listing yourself in a local telephone book. These are signs that y'all are looking to go beyond "temporary do," and Bar prosecutors will non be amused.
Moreover, the requirements of Model Rule five.five(c)(iv) must be taken seriously. This is another lesson from the contempo Minnesota case discussed before. The lawyer argued that his work for his in-laws was "reasonably related" to his practice in Colorado. The Minnesota Supreme Court did not buy it. Citing Comment 14 to Minnesota's version of Rule v.5 (which is identical to the Model Rule comment, merely non found in New York), the Court noted that the work has to have something to do with the lawyer's work in his dwelling house land, i.east., the client may be a resident of that state, or accept hired the lawyer to work in the strange state before, or the lawyer has a national practice in a specialized area, or the customer'southward activities or multi-jurisdictional. 884 North.Westward.2d at 668. None of these applied to the lawyer's in-laws.
On this point, all the same, I want to end on a more hopeful annotation. If all you lot do in your 2nd domicile is work for your one-time abode state clients, applying only home state law, and do not effort to solicit local clients, information technology is dubious that land disciplinary authorities will care.
Simply in one case over again, in New York there is a special caveat. Under North.Y. Jud. Constabulary §470, a lawyer admitted to exercise in New York who is not a New York resident must withal maintain an "office for the transaction of police force business … within the country." The New York Court of Appeals made articulate that this must be an actual, physical constabulary function; a mail drop will not practise. Schoenefeld v. Country, 25 Northward.Y.3d 22, 25 (2015). The Second Circuit recently rejected a challenge to the constitutionality of this statute nether the Privileges & Immunities clause. Schoenefeld v. Schneiderman, 821 F.3d 273 (2d Cir. 2016). While this outmoded statute may someday exist amended, until and so New York lawyers practicing New York police force in another jurisdiction still must arrange to maintain a physical office in New York.
Q: What if I am an in-business firm lawyer? Does that modify annihilation?
Yes, it does, especially if you are locating to a state that has adopted a version of the ABA'south Model In-firm Counsel Registration dominion. This allows an in-house lawyer admitted in another jurisdiction — fifty-fifty a foreign country — to register with state authorities and be admitted to practice in the second state on a limited basis. The lawyer may stand for only his or her employer and may not appear in court, except if performing pro bono services.
New York was one of the outset jurisdictions to adopt such a rule. 22 NYCRR §522.1 et seq. Nevertheless, in-house lawyers moving to New York must act rapidly: they have just 90 days to register. 22 NYCRR §522.7(a). It is astonishing the number of New York in-house lawyers admitted merely in other states who have missed this borderline, and every bit astonishing the difficulty of setting this straight with New York Grapheme and Fettle regime. Yet, the lawyer must fix the problem: the alternative is to attempt to fly nether the radar, practicing illegally, and make it impossible to later become admitted here considering of the inability to comply with the "five out of seven" dominion discussed earlier.
In short, equally a lawyer, you lot are permitted a lot more than mobility now than when Birbrower was decided. But you notwithstanding must learn the rules of the jurisdiction where your second home is located to ensure that you do not engage in interstate UPL. Shut adherence to those Rules, and the self-field of study to not establish a permanent law office or solicit local clients, should allow you to work from your second home without resistance from local or home state disciplinary regime.
Ronald C. Minkoff is the Chair of the Professional Responsibility Group at Frankfurt Kurnit Klein & Selz, P.C. in New York. He is a Past President of the Clan of Professional Responsibleness Lawyers (APRL) and a current Fellow member of the Policy Implementation Commission of the ABA Center for Professional person Responsibleness. He is co-Managing Editor of the New York Legal Ideals Reporter.
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