Concept
Why Rule 5.5(c) Exists
Temporary out-of-state practice permitted under Rule 5.5(c)
Temporary Out-of-State Practice
Why Rule 5.5(c) Exists
Model Rule 5.5(a) is the baseline from which every safe harbor in Rule 5.5(c) departs: a lawyer shall not practice law in a jurisdiction in violation of that jurisdiction's regulation of the legal profession, or assist another in doing so.1 The rule sets no licensing standard of its own. It borrows the state's, which ordinarily means admission to the state's bar. Its second clause reaches a second actor, because a lawyer who helps another person practice in violation of the state's rules breaks Rule 5.5(a) as well. A state regulates practice within its borders to ensure the quality and ethical behavior of the attorneys who work there, and the baseline serves that interest.2
Applied without exceptions, the baseline collides with the way legal work is done. A lawyer in one state may represent a client in a second state about a matter involving parties or property in a third. Even a lawyer who serves mostly local clients may find that a client has landed in a dispute while visiting another state or has joined a multistate transaction. Excessive barriers to this kind of practice impair effective representation and add unjustified costs for clients.3
The burden fell unevenly. A litigator who needs to appear in another state can ask the court supervising the case for admission pro hac vice, which is admission for the purpose of a single matter, and that court has authority to grant it. The law firm in Birbrower did only non-litigation work: negotiations, an arbitration, and the drafting of documents. No supervising court existed, so there was no authority to which the firm could appeal. The lesson of the case is that cross-state practice is a real headache for transactional lawyers, because litigators can always seek pro hac vice admission and business lawyers have no comparable mechanism.4
Rule 5.5(c) answers that gap with safe harbors, and the rule as a whole reduces barriers to interstate practice while still accounting for the state's interest in the quality and ethics of lawyers working within its borders.5 Four categories do the work. The first covers services undertaken in association with a lawyer admitted in the state who actively participates in the matter.6 The second covers services in or reasonably related to a pending or potential proceeding before a tribunal, where the lawyer, or the person the lawyer is assisting, is authorized by law or order to appear or reasonably expects to be.7 The third covers arbitration and other ADR, where the services relate to the lawyer's practice in a state of admission; an arbitral tribunal cannot effectively grant pro hac vice admission, so this harbor looks to the home practice instead.8 The fourth covers services tied to the lawyer's home practice more generally. Later sections take each in turn. Each one anchors the visit to something recognizable: a locally admitted lawyer who participates in the matter, a proceeding before a tribunal, or the lawyer's established practice at home.
Every safe harbor answers a question that comes first: did the lawyer practice in the state at all? The answer turns on where the lawyer is when serving the client, and not on whose law the advice concerns. It is the entry of the out-of-state lawyer into the state as a counselor or representative of a client that implicates Rule 5.5. Advice given to a client from the lawyer's home state is not practice in another state, even when the advice pertains to that state's law.9 If the source of the law were decisive, a lawyer would need a license in every state whose statute turned up in the research file. A rule keyed to location draws a line that can be found on the facts, and the location counts whether it is physical or virtual.10
Both lawyers dealt with Michigan law, and only Brandt went to Michigan. An exam stem that stresses which state's law governs the advice is offering a distraction. The first question is where the lawyer stood when serving the client, and only a lawyer whose work falls inside the state needs a safe harbor. The sections that follow show what each harbor requires.