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Attorney E-Newsletter

March 2007

Practice Across State Lines

More and more, the practice of law crosses state lines. Lawyers whose business takes them to other jurisdictions need to be clearly aware of the rules that govern the multistate practice of law.

Rule 8.5 of the Rules of Professional Conduct determines what jurisdiction's rules apply. With regard to any matter pending before a tribunal, the rule generally provides that the standards in effect in the jurisdiction where the tribunal sits control. Other conduct is covered by the standard where the conduct occurred, unless the "predominant effect" is in a different jurisdiction. A New Jersey lawyer admitted, but on inactive status in Pennsylvania, was suspended for violation of the Pennsylvania rules even though he never set foot in Pennsylvania, where he conducted business with a Pennsylvania client by mail. Office of Disciplinary Counsel v. Moeller, No. 53 DB 2000.

Rule 5.5 of the Pennsylvania Rules of Professional Conduct governs unauthorized practice of law and has recently been amended to address multijurisdictional practice, reflecting the language of the equivalent section of the ABA Model Rules of Professional Conduct. Many states, like Pennsylvania, have tailored their rules to the Model Rule; however, not all have, and the lawyer crossing state lines should not assume that the state he or she is entering will employ the same language.

Most lawyers understand that appearing before the tribunals of another jurisdiction generally requires appearing "pro hac vice" [literally, "for this one turn" or "this one particular occasion"]. Pennsylvania's pro hac vice rules, set forth in Rule 301 of the Pennsylvania Bar Admission rules, provide that a lawyer qualified to practice in another jurisdiction may be admitted in a particular case upon motion of a member of the bar of the Commonwealth, and that the court "shall grant such a motion unless good cause for denial shall appear." Most jurisdictions have similar rules, but again the lawyer seeking to appear in another state should not make assumptions, but must check the local rule. Some states are quite lenient, requiring only routine filing of a motion, and others are more stringent, requiring association of local counsel and/or specific action by the court.

Matters not involving court appearances can be trickier. Pennsylvania's Rule 5.5(c) states, as does the Model Rule, that "a lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction . . ." under specific circumstances. These include:

  • Services performed in association with a locally admitted lawyer who "actively participates" in the matter;
  • Services relating to a proceeding, here or elsewhere, in which the lawyer (or one the lawyer is assisting) is authorized to appear or reasonably expects to be; and
  • Services relating to an arbitration, mediation, or alternative dispute process, here or elsewhere, in which the lawyer is authorized to appear, and which arise out of the lawyer's practice in a jurisdiction where he or she is licensed to practice.

Finally, Rule 5.5(c) (4) allows a lawyer to perform other services which "arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice." Although this exception seems almost broad enough to swallow the rule, it should not be read as a broad grant of authority and should be construed carefully. The various comments give examples of the kind of activities which may be performed under these rules, including:

  • meeting with witnesses,
  • reviewing documents, conducting research,
  • taking depositions for use in a jurisdiction where the lawyer is authorized to practice.

It should also be emphasized that these are permitted only on a temporary basis. The lawyer who casually dispenses advice to and performs other services for clients outside the jurisdiction where she or he is licensed runs a very serious risk of being charged with unauthorized practice of law, and may be subject to severe discipline.

Section (d) of Rule 5.5 also makes provision for a lawyer to provide legal services to organizational employers or affiliates under some circumstances, and also where permitted to do so under Federal or other law.

Clearly these are highly technical provisions, and this brief note cannot provide a guide to all situations covered by Rule 5.5 without going on at greater length than the Rule and its Comments together. While multijurisdictional practice is increasingly a reality in the law, the careful practitioner should investigate thoroughly the applicable law in any jurisdiction where she or he is called upon to venture.

A Web site which may be useful to those who occasionally reach across state lines in their practice is www.crossingthebar.com. This is a subscription site [$50/year], but it offers an extensive collection of materials on the admissions law of various states. The ABA has an extensive collection of reports and articles on multijurisdictional practice at http://www.abanet.org/cpr/mjp/home.html.

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Pennsylvania Lobbying Disclosure Law

Lawyers who engage in legislative advocacy should be aware of the passage of the Pennsylvania Lobbying Disclosure Law, P.L. 2006-134 (November 1, 2006, effective January 1, 2007), 65 Pa.C.S. §13A01 et seq. Laura Mohney, staff counsel to the Disciplinary Board, reports, "The Act requires registration and reporting by any person or entity that is paid or pays to influence the actions of the General Assembly and/or the Executive Department. There are certain limited exceptions. For attorneys, the Act applies to activities that in the past have been considered to be the practice of law rather than lobbying. Attorneys will need to review the law to determine whether it is necessary to register as a lobbyist. The deciding issue is whether or not the attorney is carrying out any of the lobbying activities subject to registration under the Act. Attorneys who engage as lobbyists are on notice that they have no claim of lawyer/client privilege in this area. RPC 1.19 covers lawyers acting as lobbyists.

Currently, a committee is working on regulations pertaining to the act. Information regarding the Act and the Committee's activities is available at the Attorney General Web site and the Department of State."

PBA Issues Ethics Opinion on File Management

The Committee on Legal Ethics and Professional Responsibility of the Pennsylvania Bar Association has issued Formal Opinion 2007-100 regarding "Client Files - Rights of Access, Possession, and Copying, along with Retention Considerations." This opinion examines the legal and ethical status of client files and records in light of Maleski v. Corporate Life Insurance Co., 163 Pa. Commw. 36, 641 A.2nd 1 (1994) and subsequent actions in other jurisdictions, along with newer considerations such as complicating factors arising from the use of email and electronic documents. A copy of this opinion is posted at the Disciplinary Board Web site (www.padb.us). We will revisit the issue in light of this opinion in the next issue.

Tip of the Month: Is Texting Secure?

Although it may be a generational phenomenon, text messaging is an increasingly popular means of communication. But lawyers seeking to express or impress with text messaging should be aware that such communications may not be as secure as many think. This story about possible interception of text messages by a discount store employee suggest that lawyers should be cautious about entrusting confidential or sensitive information to the flying thumbs.

Gotta Tip?

We are well aware that the editorial staff of this newsletter is not the fountain of all ethical wisdom (in fact, the metaphor of a dripping faucet has been suggested). Our paramount goal is to be useful to you, the subscriber in the practice of law, and what could better serve the cause of usefulness than drawing on the vast collective experience of our 25,000 plus readers?

So, we are inviting the readership to become contributors to this section. If you have a tip you have picked up in the course of your practice - something you have learned how to do better, an odd or perplexing issue you have encountered, something you have seen done which bothered you - please feel free to share it with us via our email address, comments@padisciplinaryboard.org. If we use your tip, we'll give you credit. We'd offer revenue sharing, but what percentage of zero would you need?

Also, if there is some issue you would like to see this newsletter address, some topic you'd like to hear more about, some new area we should be covering, please let us know. Criticism, too; we can handle it. Most of the time.