Is national licensing of lawyers coming? The U.S. legal tradition treats states as the original sovereigns, the national government their creation - one limited by "enumerated powers".
One result is a jigsaw puzzle of authorities governing the work of lawyers. The status quo for house counsel, challenges, and possible changes are well presented in a Guide on Multijurisdictional Practice by the Association of Corporate Counsel. The current Rules were already challenged before the Covid-19 pandemic. That crisis spurred massive reliance on ZOOM and other platforms, further reducing the importance of the physical locations of attorney and client. One can manage a lawsuit via the internet from almost anywhere. The internet has transformed how, where, and when we work. But our Rules were pronounced in the era of physical office with physical files, face to face contact, telephones, and mail.
The American Bar Association Center for Professional Responsibility Working Group on Model Rule of Professional Conduct 5.5 has posted an Issues Paper For Comment: Regulatory Issues Associated With Possible Amendments to ABA Model Rule of Professional Conduct 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law). The ABA set a short deadline of March 1 for comments.
On April 18, 2022 the specialty private bar organization Association of Professional Responsibility Lawyers (APRL)- presented to American Bar Association [ABA] President Reginald Turner a report and proposed revision of Model Rule 5.5 Unauthorized Practice of Law and Multi-Jurisdictional Practice.
The ABA's Standing Committee on Ethics and Professional Responsibility had in March 2022 presented a draft which if adopted would "permit"
a lawyer admitted and authorized to practice law by any United States jurisdiction, and not disbarred or suspended from practice by any jurisdiction, to provide legal services in any jurisdiction, if that lawyer:
• discloses, in writing, to the client or prospective client who will be receiving legal services in this jurisdiction, the jurisdiction(s) where the lawyer holds an active license to practice law and that the lawyer is not actively licensed to practice law by this jurisdiction;18 and
•complies with the pro hac vice admission or other regulatory requirements of this jurisdiction
APRL's proposal goes farther than the ABA 2022 draft. But the ABA Professional Responsibility Working Group on Rule 5.5 Multi-jurisdiction practice on January 16, 2024 responds warmly to the proposal by the APRL. At its heart the APRL proposal [<<slides] is to permit any lawyer in good standing admitted in any state be authorized to practice before any court in the country.
The APRL also proposed that foreign lawyers be allowed to practice in any state.
States would retain their disciplinary authority, lawyers suspended in one state or jurisdiction would not be permitted to practice in any jurisdiction.
As recounted by the ABA discussion paper the APRL Model Rule 5.5 would be broader:
The APRL proposal to revise MRPC 5.5 provides that a lawyer admitted and authorized to practice law in any United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services—including on a systematic and continuing basis—in a jurisdiction in which the lawyer was not licensed, subject to the following conditions:
• the lawyer may not hold out to the public or otherwise represent that the lawyer is admitted to practice law in a jurisdiction in which the lawyer is not licensed;
• the lawyer must disclose where the lawyer is admitted to practice law;
• the lawyer must comply with the jurisdiction’s rules of professional conduct, including but not limited to MRPC 1.1 (Competence), and with the admission requirements of courts of this jurisdiction;
• the lawyer will be subject to MRPC 8.5 regarding the disciplinary authority and choice of law rules of this jurisdiction; and
• the lawyer may not assist another person in the unauthorized practice of law in this, or any other, jurisdiction.The APRL proposal "retains the language in MRPC 5.5 permitting a lawyer admitted and authorized to practice law in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, to provide, in this jurisdiction, legal services that are provided to the lawyer’s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and do not arise under the law of any U.S. jurisdiction, unless the services are provided after consultation with a lawyer authorized to practice law in this jurisdiction."
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