Concept
Rule 5.5(a) Prohibition
Unauthorized practice of law—by lawyers and nonlawyers
Rule 5.5(a) Prohibition
Model Rule 5.5(a) writes the unauthorized-practice monopoly into the lawyer's own disciplinary code in a single sentence: "A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so."1 The sentence has two prongs joined by "or." The first governs the lawyer's own practice; the second governs the lawyer's help to someone else. Either prong is an independent ground for discipline, and each receives its own treatment below.
The rule never defines unauthorized practice. It measures the lawyer against the regulation of the legal profession in the jurisdiction where the work is done, so the content of the prohibition comes from local sources: admission rules, statutes and court rules that define the practice of law, and whatever authorizations the jurisdiction grants to people outside the licensed bar. Rule 5.5(a) therefore works as a bridge. Whatever the local unauthorized-practice (UPL) regime forbids, the ethics rule converts into professional misconduct for a lawyer who commits or assists the violation. That design suits a system in which each state controls its own bar, because a single national definition of authorized practice would sit awkwardly beside separate state regimes.
Every problem under this rule therefore begins with two questions: which jurisdiction's regulation governs the work, and does that regulation authorize it? The rest of the chapter applies those questions to nonlawyers, to lawyers admitted only in other states, and to lawyers whose licenses have been suspended. The first prong, a lawyer's own practice in violation of local regulation, comes first.
Practicing in Violation
The first prong makes it misconduct for a lawyer to "practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction."2 Because it is a conduct rule addressed to lawyers, it reaches people who already hold a license somewhere and measures them against the licensing rules of the place where they work. (A nonlawyer who practices without authority faces different consequences, taken up later.) Two kinds of lawyer fall within the prong. One is admitted only in another state and practices in a state whose regulation does not authorize the work. The other is admitted in the very state where the work is done, but has had the license suspended, so the authorization it once supplied is gone for the time being.
The prong is derivative: it creates no free-standing wrong. A violation of the local unauthorized-practice regime triggers it, and when no local rule has been broken, Rule 5.5(a) has nothing to attach to. The design follows from what a license is. Each state sets its own standards of competence and character and runs its own disciplinary machinery, and a license is the state's statement that the holder has met those standards and answers to that machinery. A lawyer admitted elsewhere has not passed through this state's screen, and a suspended lawyer has had the state withdraw its authorization. If either could practice as before, the screen would filter no one. The out-of-state lawyer therefore gains nothing from being a lawyer: a lawyer admitted in New York is just as subject to New Jersey's limits as a nonlawyer would be, subject to the temporary-practice exceptions covered later.3
The suspended lawyer shows how one course of conduct can break several rules at once. Suspension is not always the sanction imposed at the end of a disciplinary case; a license may also be suspended for failing to complete continuing legal education, for a finding of disability, or for ignoring a child support order.4 Consider a lawyer suspended for a continuing education lapse who keeps meeting clients and filing papers without telling anyone. Practice after suspension is practice without local authorization, so the first prong is violated.5 Carrying on as if the license were valid also suggests to clients that the lawyer is entitled to practice, which supports a charge of dishonest conduct under Rule 8.4(c).6 The violations compound. Rule 1.16(a) requires a lawyer to withdraw when continuing a representation would violate the rules, and continuing after suspension does exactly that. Rule 1.4 also required the lawyer to tell each client that the license was suspended and that the representation could not go on.7 A one-rule answer to these facts is incomplete; the full answer lists the companion violations along with Rule 5.5(a).
Suspension does not always bar the lawyer from every legal workplace. A state's suspension rule may allow the lawyer to work for another attorney, firm, or professional association, so long as the suspended lawyer performs only services that a layperson in that job could permissibly perform and has no client contact.8 The no-contact condition keeps the suspended lawyer from advising anyone, and advice is the core of what the suspension withdrew. Disciplinary authorities take a harsher view of a quieter workaround, in which another attorney holds the suspended lawyer's matters under a prearranged understanding that they will return after reinstatement. That arrangement is surreptitious continued practice.9
Because the prong borrows its content from local law, the analysis runs most reliably as a short sequence of questions about authorization.
The second prong reaches a different lawyer: one who may be fully authorized personally but who helps someone else practice without authority.
Assisting Another's Violation
The second prong forbids a lawyer to "assist another in doing so": to help another person practice law in violation of the jurisdiction's regulation of the legal profession.11 The word "another" carries no limit. It covers an out-of-state lawyer who has no authority to practice in the jurisdiction and a nonlawyer who is licensed nowhere, and it reaches the lawyer who employs or retains either one for a task.12 The first prong asked whether the lawyer was personally authorized. This prong asks whether the lawyer's help made someone else's unauthorized practice possible, so a lawyer with a valid local license, who has never improperly appeared in a courtroom, can still violate it.
The prong exists because the profession's usual enforcement tool cannot reach the people it most needs to reach. The disciplinary rules bind lawyers and do not apply to nonlawyers, and the bar would have difficulty regulating the profession if nonlawyers working outside law firms had an incentive to profit from the practice of law.13 The licensed lawyer working alongside is the bar's most direct handle. If a lawyer could lend a license, a name, or a fee arrangement to someone who then practices in the lawyer's shadow, the licensing system would be evaded and no one would answer for the result. The assistance clause closes that gap by making the lawyer personally accountable for the help. Each form of help discussed below is a version of the same lending.
Delegation inside the lawyer's own office shows where the line falls. A lawyer may give nonlawyer assistants drafting, research, and organizing work, and the duty under Rule 5.3 to supervise them keeps the lawyer responsible for what that work becomes. The lawyer may not hand over the legal advice itself.
The deciding detail in this scene is who tells the client what the law means. Suppose a paralegal drafts routine documents and researches questions, the lawyer reviews every page, and the lawyer personally gives each client the advice. That lawyer is delegating and supervising, not assisting. In the staffer's office, a nonlawyer has become the source of legal advice, and the lawyer's arrangement is what makes the unauthorized practice possible.
Document-preparation businesses raise the same question in commercial form. Do-it-yourself books and software that let laypeople create their own legal documents generally do not amount to unauthorized practice, and a lawyer may take part in preparing them.14 Courts draw the line at advice that is personalized or directed at the specific problem of a designated or readily identifiable person.15 Printed or programmed material speaks to every buyer alike, so no one has applied law to a particular customer's facts. A telephone number or e-mail address through which buyers can reach a lay person for help completing the forms changes that, because a person is now responding to individual customers, and a lawyer cannot be involved in such an enterprise.16 The same generic guide is therefore safe to help write without the contact line and unsafe to help write with it.
Because the prong borrows its content from local regulation, the same help can be proper in one state and improper in the next. A jurisdiction may hold that filling in the blanks on a form contract is itself the practice of law, and presumably a lawyer there cannot draft form documents that others will use that way.17 In the majority of states, real estate agents may complete purchase contracts and similar forms if they charge no separate fee for the service and give no legal advice, so a lawyer in those states can assist in drafting the form.18 The treatment of brokers later in this chapter refines that majority approach.
Lending a name is the plainest form of assistance. The older Canon 47, quoted in a footnote to N.A.A.C.P. v. Button, provided that no lawyer "shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate."19 A lawyer's name on a document or letterhead tells customers that a licensed professional stands behind the work, which is exactly the reassurance an unlicensed operation lacks. A lawyer who signs off on papers a lay agency prepared, without reviewing them or advising anyone, supplies that appearance and makes the operation possible. The modern assistance clause covers the conduct without mentioning names, because lending a name is one way of assisting.
Fee and ownership arrangements assist unauthorized practice indirectly, by giving a nonlawyer a reason to start giving legal advice. The profession has long been wary of sharing legal fees with nonlawyers and of letting nonlawyers own or manage a law practice, chiefly because those relationships threaten the lawyer's professional independence, and Model Rule 5.4(a) bars fee sharing subject to narrow exceptions.20 The same arrangements feed unauthorized practice, since a nonlawyer who splits fees with a lawyer may profit by giving clients inexpert legal advice before referring them.21 If a lawyer and an accountant divide a fee according to the time each spends on a client's problem, the accountant can raise his share by spending extra hours on advice that moves past financial matters into law. The fee and ownership rules remove that incentive in advance, and the assistance clause reaches the lawyer if the incentive operates anyway. Those rules are taught in their own right elsewhere; here they matter because they cut off the temptation to cross the line.
Discipline is the first consequence for a lawyer who assists, because assistance is itself misconduct under Rule 5.5(a) even when the lawyer's own practice was proper in every respect.22 A failure to supervise nonlawyer assistants can be charged separately. Fee and civil consequences come later in this chapter.