Lawyers should be able to practice law in any state, says group urging ABA model rule change

The ABA should change its model rules to allow licensed lawyers to provide legal services in any state, according to a proposal by a group of more than 400 lawyers and law professors who provide advice on legal ethics matters.

The Association of Professional Responsibility Lawyers sent a letter to ABA President Reginald Turner on Monday that proposes a change to Model Rule 5.5 of the ABA Model Rules of Professional Conduct, which can be adopted by states as their own. Model Rule 5.5 governs unauthorized practice of law and multijurisdictional practice.

“Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time,” said the letter, written by Brian Faughnan, president of the Association of Professional Responsibility Lawyers.

“At the same time, our new Model Rule 5.5 would still preserve judicial authority in each state to regulate who appears in state courts, emphasizes that lawyers must be competent under Rule 1.1 no matter where they are practicing or what kind of legal services they are providing, and ensures that lawyers will be subject to the disciplinary jurisdiction of not only their state of licensure but wherever they practice.”

The suggested rule change says lawyers would have to disclose where they are admitted to practice, and they couldn’t practice in a different jurisdiction if they have been suspended or disbarred.

The ABA’s current Model Rule 5.5 says a lawyer not admitted to practice in a particular jurisdiction shall not establish an office or continuous presence in that jurisdiction, except as authorized by the ethics rules or other law. An out-of-state lawyer can practice in the particular jurisdiction on a temporary basis in some circumstances, however, including by partnering with a local lawyer. There are also exceptions for in-house lawyers.

An ABA ethics opinion released in December 2020 addressed the issue of lawyers practicing remotely from another state in which they are not licensed during the COVID-19 pandemic. Those lawyers can still practice law in their licensed jurisdictions, as long as the jurisdiction of their remote practice has not determined such conduct is unlicensed or unauthorized practice of law.

The proposed rule change by the Association of Professional Responsibility Lawyers emphasizes the concept of clients’ right to choose counsel “and acknowledges that protecting clients from incompetent lawyering does not require artificial boundaries,” according to a report prepared by a subcommittee of the Association of Professional Responsibility Lawyers that developed the rule.

One justification for the rule change is the access-to-justice gap, the report says. In many states, there are too few or zero lawyers in some geographic areas. The rule change could also benefit underemployed and unemployed lawyers who are willing to provide legal services to underserved areas, the report says.

The report adds that reciprocity rules that allow lawyers to practice in additional states aren’t “an adequate solution.” Eleven states don’t offer reciprocity, and those that do offer reciprocity impose burdens, such as a time-in-practice requirement, different standards for continuing legal education and a long wait for approval.

The ABA is reviewing the letter and says it is premature to comment.

Typically, the ABA Standing Committee on Ethics and Professional Responsibility reviews possible rule changes while gathering input through a public hearing and written comments. Any rule change would have to be approved by the ABA House of Delegates.

Hat tip to Reuters, which has coverage of the proposal.

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