By Ryan Boysen
Law360 (October 20, 2021, 4:41 PM EDT) -- Have bar association rules that limit in which states lawyers can practice outlived their usefulness? Yes, to an extent. But getting rid of them altogether could also open a massive can of worms. Three experts came to that conclusion while discussing the issue on a panel Wednesday.
The event, sponsored by the American Bar Association, Legal Hackers and the Institute for the Advancement of the American Legal System at the University of Denver, titled "Redesigning Legal: Lawyer UPL — Has It Jumped the Shark?" focused on the so-called unauthorized practice of law, or UPL.
Specifically, the panel's three speakers discussed state bar association rules that define UPL in purely geographic terms. Those rules largely require attorneys to practice law only in states where they're formally licensed to do so.
While those rules are rooted in the commonsense notion that lawyers admitted to practice in a given state know that state's laws better than lawyers who aren't, Wednesday's panel pointed out that in practice, UPL rules can lead to nonsensical or counterproductive results.
Through examining a series of hypotheticals, the panel recommended that state bar associations loosen UPL rules to an extent, but also cautioned against abandoning them wholesale, despite some forceful arguments from viewers in favor of that outcome.
"The regulators' concern, in my opinion, should be harm to the public … if there's no harm, no confusion to potential clients, then I think it's a huge stretch to say it's UPL," said panelist Wendy Muchman, a professor at Northwestern University School of Law who focuses on legal ethics.
Muchman was responding to a hypothetical posed by moderator Lynda Shely, an Arizona attorney who specializes in legal ethics. She often defends lawyers before state bar prosecutors and currently chairs the American Bar Association's Standing Committee on Ethics and Professional Responsibility.
In the hypothetical, Shely asked if two lawyers who are married and admitted to practice in California and Massachusetts, respectively, should be allowed to continue practicing even if they're living at their winter home in Arizona for several months.
Mike Kennedy, a former president of and longtime prosecutor for the Vermont Bar Association, said it would be absurd for UPL rules to stand in the way of two lawyers doing what Shely was describing.
"Of course they can do this," he said.
Muchman agreed, but even so, the pair noted that some states have still not updated their local bar association rules to formally allow this type of remote lawyering.
That's despite the fact that the ABA issued Formal Opinion 495 in December 2020 announcing that remote lawyering shouldn't be considered UPL, seeing as how thousands upon thousands of attorneys were doing some version of this during the COVID-19 pandemic.
Shely then moved on to a scenario in which a lawyer is admitted in California and represents a California-headquartered company, but travels to other states to work on aspects of a merger with another company.
Muchman and Kennedy again agreed that such conduct should clearly be allowed, but noted that because the local rules have not been updated in Hawaii and Texas, doing so could get the hypothetical lawyer written up.
Then Shely lobbed a thornier situation: a lawyer who's admitted in one state, but regularly practices in a neighboring state where she's not.
Kennedy said he had to draw the line at that behavior, as it blatantly violates existing UPL rules.
"Even if you think the rules should eventually be all about, 'Is the lawyer competent or not?' until we get there you need to comply with the rules," Kennedy said.
"People like Natalia" — the hypothetical lawyer — "who openly flout the rules do a disservice to those of us trying to change these rules," he added.
That scenario raised an interesting question for the panelists and those watching the discussion on Zoom, however: Should lawyers be limited by strictly geographic UPL rules at all?
One viewer argued repeatedly in the chat that the UPL rules serve no purpose whatsoever and that they don't prevent lawyers from revealing themselves to be incompetent or fraudsters.
"So what is the point of licensing if it does not prevent bad lawyers from practicing?" that viewer wrote in the chat.
While not responding directly to that comment, Kennedy acknowledged that a myopic focus on UPL rules can sometimes result in missing the forest for the trees.
"I don't understand why we're so quick to assume that people from other jurisdictions are incompetent, when we really don't worry about it all that much in our own jurisdictions," he said.
Muchman agreed, but said abolishing UPL rules altogether would create the massive problem of figuring out how to pay for any type of lawyer regulation. As it stands, attorneys pay annual dues to state bar associations where they're admitted because they must do so in order to practice.
"It's a legit concern," she said. "States have to have the resources to enforce the rules of professional conduct."
Kennedy agreed, saying that if UPL rules were abolished it would likely be smaller states like Vermont that would see an influx of out-of-state lawyers that practice but don't pay state bar dues.
But they also said that in some situations, it would likely be a net positive for lawyers to practice across state lines with no strings attached.
Shely presented a hypothetical where tenant clients in Idaho are repeatedly seeking out a well-regarded housing rights attorney in neighboring Washington because the few firms available in their home state are often unable to represent them due to conflicts of interest. Does it really make sense that current UPL rules would prevent that attorney from assisting those needy clients?
"You're rarely better off with no representation at all," Muchman said. "A good lawyer at least knows how to spot what the concerns are in a given case."
Kennedy agreed, saying it's a question that the ABA and local state bar associations are likely to continue debating in the near future.
"What we're talking about here are people who are better off with somebody that at least knows something than they are on their own," he said. "We've got to figure out a way to make it so that those people in those situations get the help they need."
--Editing by Alanna Weissman.
Update: This article has been updated with additional information on the sponsors of Wednesday's panel.
Wednesday's three panelists discuss UPL rules.
Specifically, the panel's three speakers discussed state bar association rules that define UPL in purely geographic terms. Those rules largely require attorneys to practice law only in states where they're formally licensed to do so.
While those rules are rooted in the commonsense notion that lawyers admitted to practice in a given state know that state's laws better than lawyers who aren't, Wednesday's panel pointed out that in practice, UPL rules can lead to nonsensical or counterproductive results.
Through examining a series of hypotheticals, the panel recommended that state bar associations loosen UPL rules to an extent, but also cautioned against abandoning them wholesale, despite some forceful arguments from viewers in favor of that outcome.
"The regulators' concern, in my opinion, should be harm to the public … if there's no harm, no confusion to potential clients, then I think it's a huge stretch to say it's UPL," said panelist Wendy Muchman, a professor at Northwestern University School of Law who focuses on legal ethics.
Muchman was responding to a hypothetical posed by moderator Lynda Shely, an Arizona attorney who specializes in legal ethics. She often defends lawyers before state bar prosecutors and currently chairs the American Bar Association's Standing Committee on Ethics and Professional Responsibility.
In the hypothetical, Shely asked if two lawyers who are married and admitted to practice in California and Massachusetts, respectively, should be allowed to continue practicing even if they're living at their winter home in Arizona for several months.
Mike Kennedy, a former president of and longtime prosecutor for the Vermont Bar Association, said it would be absurd for UPL rules to stand in the way of two lawyers doing what Shely was describing.
"Of course they can do this," he said.
Muchman agreed, but even so, the pair noted that some states have still not updated their local bar association rules to formally allow this type of remote lawyering.
That's despite the fact that the ABA issued Formal Opinion 495 in December 2020 announcing that remote lawyering shouldn't be considered UPL, seeing as how thousands upon thousands of attorneys were doing some version of this during the COVID-19 pandemic.
Shely then moved on to a scenario in which a lawyer is admitted in California and represents a California-headquartered company, but travels to other states to work on aspects of a merger with another company.
Muchman and Kennedy again agreed that such conduct should clearly be allowed, but noted that because the local rules have not been updated in Hawaii and Texas, doing so could get the hypothetical lawyer written up.
Then Shely lobbed a thornier situation: a lawyer who's admitted in one state, but regularly practices in a neighboring state where she's not.
Kennedy said he had to draw the line at that behavior, as it blatantly violates existing UPL rules.
"Even if you think the rules should eventually be all about, 'Is the lawyer competent or not?' until we get there you need to comply with the rules," Kennedy said.
"People like Natalia" — the hypothetical lawyer — "who openly flout the rules do a disservice to those of us trying to change these rules," he added.
That scenario raised an interesting question for the panelists and those watching the discussion on Zoom, however: Should lawyers be limited by strictly geographic UPL rules at all?
One viewer argued repeatedly in the chat that the UPL rules serve no purpose whatsoever and that they don't prevent lawyers from revealing themselves to be incompetent or fraudsters.
"So what is the point of licensing if it does not prevent bad lawyers from practicing?" that viewer wrote in the chat.
While not responding directly to that comment, Kennedy acknowledged that a myopic focus on UPL rules can sometimes result in missing the forest for the trees.
"I don't understand why we're so quick to assume that people from other jurisdictions are incompetent, when we really don't worry about it all that much in our own jurisdictions," he said.
Muchman agreed, but said abolishing UPL rules altogether would create the massive problem of figuring out how to pay for any type of lawyer regulation. As it stands, attorneys pay annual dues to state bar associations where they're admitted because they must do so in order to practice.
"It's a legit concern," she said. "States have to have the resources to enforce the rules of professional conduct."
Kennedy agreed, saying that if UPL rules were abolished it would likely be smaller states like Vermont that would see an influx of out-of-state lawyers that practice but don't pay state bar dues.
But they also said that in some situations, it would likely be a net positive for lawyers to practice across state lines with no strings attached.
Shely presented a hypothetical where tenant clients in Idaho are repeatedly seeking out a well-regarded housing rights attorney in neighboring Washington because the few firms available in their home state are often unable to represent them due to conflicts of interest. Does it really make sense that current UPL rules would prevent that attorney from assisting those needy clients?
"You're rarely better off with no representation at all," Muchman said. "A good lawyer at least knows how to spot what the concerns are in a given case."
Kennedy agreed, saying it's a question that the ABA and local state bar associations are likely to continue debating in the near future.
"What we're talking about here are people who are better off with somebody that at least knows something than they are on their own," he said. "We've got to figure out a way to make it so that those people in those situations get the help they need."
--Editing by Alanna Weissman.
Update: This article has been updated with additional information on the sponsors of Wednesday's panel.
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