Threshold Requirements

Threshold Requirements

Rule 5.5(c) opens with a clause that governs every provision beneath it: a lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that fall within a listed category.¹ Two conditions come first. One describes the lawyer, who must be admitted elsewhere in the United States and must not be disbarred or suspended anywhere. The other describes the work, which must be temporary. Only a lawyer who meets both reaches the four categories that follow: association with local counsel, proceedings before a tribunal, alternative dispute resolution, and services tied to the lawyer’s home practice.

Because the clause sits above all four categories, a failure here defeats every one of them. A lawyer who works beside an active local lawyer fits the first category on its terms, yet the rule gives the visit no protection if the lawyer is suspended in some other state.² Services tied to a pending proceeding fit the second category, yet that fit means nothing if the engagement has become a continuing practice and is no longer temporary.³ The categories describe the work: a local lawyer who actively participates, or a proceeding in which someone is, or expects to be, authorized to appear. The opening clause describes the lawyer and the stay. Nothing about the work can repair a defect in either.

This ordering tells you how to work a fact pattern. Test the opening clause first, because a lawyer who fails either condition has no reason to compare categories. Only after the lawyer proves to be an eligible visitor doing temporary work does the question become which category covers the services. The next two subsections take the conditions in turn: who counts as an eligible out-of-state lawyer, and what the rule means by temporary.

Eligible Out-of-State Lawyers

The first condition concerns the person, and its wording repays a slow reading. It asks for one positive fact and one negative fact.⁴ The positive fact is admission in a United States jurisdiction other than the forum; a lawyer already admitted in the forum needs no safe harbor. The negative fact is the absence of any disbarment or suspension, and a single word sets the breadth of that search: any.

Students skip that word more than any other in the clause. Because the clause measures disbarment or suspension from practice in any jurisdiction, the inquiry reaches past the lawyer’s home state. A lawyer in good standing at home who is serving a suspension imposed by a second state fails the condition, even though the forum had no part in the second state’s proceeding. The condition makes sense in light of the problem it addresses. During a temporary visit the forum cannot examine each lawyer before the work begins, so standing elsewhere stands in for that examination, and a suspension or disbarment from any state removes the assurance. If only the home record counted, a lawyer disciplined in a second state could keep using the safe harbors by staying in good standing at home.

The condition is one expression of the balance that runs through Rule 5.5 as a whole. The rule lowers barriers to interstate practice while preserving the state’s interest in the quality and ethical conduct of lawyers who practice within its borders.⁵ Good standing protects that interest lawyer by lawyer.

Mehta’s clean record opens the door only to the next questions. The work must still be temporary and must still fit a listed category. An exam stem will often announce that the visiting lawyer is in good standing at home and mention a discipline problem in another state only in passing. The passing mention controls the answer.

The positive fact has a boundary as well. The clause speaks of admission in another United States jurisdiction, so a lawyer admitted only in a foreign country does not satisfy it.⁶ That lawyer falls outside paragraph (c) as written and must look elsewhere for authority to serve a client in the state.

Meaning of Temporary

The opening clause protects only legal services provided on a temporary basis, and Rule 5.5(b) marks the far edge of that word. A lawyer who is not admitted in the state may not establish an office or other “systematic and continuous presence” there for the practice of law.⁸ Everything short of that presence can still count as temporary. Comment 6 to Rule 5.5 confirms that temporary practice may recur or last for an extended period, for example when it relates to a single negotiation or litigated matter.⁹ “Temporary” therefore describes the kind of connection the lawyer has with the state, not a count of days or trips.

Physical absence does not settle the question either. Comment 4 explains that presence may be systematic and continuous even if the lawyer is not physically present in the state, which reaches the regular use of electronic media to create a permanent virtual presence.¹⁰ Frequent visits do not make a practice permanent, and staying home does not keep it temporary.

Each half of the rule has its own reason. Recurring and lengthy work on one matter fits how matters unfold. A negotiation or a lawsuit runs on its own schedule, and a cap on trips or days would force a client to change lawyers midway, the kind of added cost that excessive barriers to interstate practice impose.¹¹ The ban on a standing presence answers a different problem. A lawyer who settles in and practices regularly is doing what the general rule reserves for licensed lawyers, since an attorney who wishes to practice regularly in a state must be licensed there.¹² A safe harbor that sheltered that arrangement would swallow the admission requirement. The exceptions are limited in scope and in duration for exactly that reason: they let an out-of-state lawyer serve on a single occasion, or in a single matter or series of matters.

The trap an exam stem sets is to treat repeated visits as disqualifying, as if a lawyer who keeps returning has crossed from temporary into permanent. The question is whether the lawyer has established an office or a systematic and continuous presence, and the answer depends on the nature of the work and the arrangement behind it. Frequency is at most evidence of that nature. The standard illustration is litigation proceeding in South Dakota that requires a trip to Minnesota to take a deposition. A lawyer admitted only in South Dakota who makes the trip is not subject to discipline for unauthorized practice in Minnesota, because the exceptions in Rule 5.5(c) are aimed at occasional, episodic practice related to the lawyer’s activities in the admitting jurisdiction.¹³

Lindqvist makes far more trips than the deposition lawyer above, yet the added trips change nothing. Every one serves the same negotiation, and the matter supplies a built-in endpoint. Kessler’s stay has no endpoint of that kind because it depends on no matter at all, and his office is itself the standing presence the rule forbids. That contrast shows why the analysis asks what sort of connection the lawyer has with the state and treats the number of visits only as evidence of the answer. Passing the temporariness test completes only half of the opening clause’s work, and the services must still fall within one of the listed categories.