Concept
Proceedings Before a Tribunal
Temporary out-of-state practice permitted under Rule 5.5(c)
Proceedings Before a Tribunal
Rule 5.5(c)(2) shelters a visiting lawyer whose work serves a case before a decision-maker. It covers temporary services that are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, so long as the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in the proceeding or reasonably expects to be so authorized.1 A tribunal here is the court or other body that will decide the matter. The category is built around authorization to appear, and it includes admission pro hac vice, one of the limited forms of admission before a tribunal that Rule 5.5 recognizes.2
The safeguard here differs from the one in association with local counsel. Paragraph (c)(1) depends on a locally admitted lawyer; paragraph (c)(2) depends on the tribunal. The rule demands no local partner, because permission to appear comes from the body before which the lawyer will appear, or from the law that authorizes the appearance.
Two questions organize the paragraph. Is the lawyer, or a person the lawyer is assisting, authorized to appear or reasonably expecting authorization? And do the services connect to the proceeding? The first question has two answers, one for the lawyer who already holds permission and one for the lawyer who expects it, and the first two subsections take them in turn. The third subsection takes up the connection. Both questions operate beneath the threshold requirements of eligibility and temporariness, so a visitor who is not an eligible out-of-state lawyer, or whose services are not temporary, gains nothing from a court's authorization.
Authorized to Appear
The simplest way into the tribunal safe harbor is authorization already in hand. The lawyer, or a person the lawyer is assisting, must be authorized by law or order to appear in the proceeding.3 An order is a tribunal's ruling in a particular case, and the most familiar one admits an out-of-state lawyer pro hac vice, giving that lawyer permission to appear in the case. Law is the other source. Because the rule also reaches a person the lawyer is assisting, typically another lawyer, a visitor who supports a colleague already authorized to appear satisfies the condition through that colleague. At the time of the work, the question is whether a court or other law has already said that someone on this side of the case may appear.
Pro hac vice admission is an accommodation, not an entitlement. It serves an out-of-state lawyer with a special need to represent a client on a single and usually unexpected occasion, and courts are meant to grant it infrequently, not as a vehicle for a continuing practice in the forum.4 The Supreme Court stressed in New Hampshire v. Piper that the decision whether to grant that status is purely discretionary.5
Discretion matters because of what the alternative would allow. If a court had to grant every request from a lawyer in good standing elsewhere, that lawyer could litigate in the state case after case without joining its bar, and the admission requirement would erode one case at a time. The court's power to refuse keeps the accommodation occasional. It also marks the limit of paragraph (c)(2): the paragraph keeps an accepted lawyer from being treated as an unauthorized practitioner, and it gives no lawyer a right to be accepted.
The court's freedom narrows in a criminal case. A criminal defendant's Sixth Amendment right to counsel of choice gives a request for an out-of-state lawyer added weight, because the defendant's liberty is at stake.6 The request is then more than the courtesy it may be in an ordinary civil dispute.
Authorization can also come from federal law. Rule 5.5(d)(2) covers services that the lawyer is authorized by federal or other law or rule to provide in the jurisdiction,7 and Rule 5.5 does not contradict an authorization that federal or state law otherwise provides.8 A lawyer admitted only in Oregon whom a federal court sitting in Texas has authorized to appear therefore does not engage in unauthorized practice by appearing there.
Exam stems test this route through what happened to the pro hac vice motion. A pending case alone proves nothing about authorization; the question is whether an order or other law permits the lawyer, or the person the lawyer is assisting, to appear. A grant opens the safe harbor and a denial closes it, which shows that the protection rests on the tribunal's decision and gives the visitor no entitlement of his own. A motion that is filed but not yet decided belongs to the next subsection.
Reasonable Expectation of Authorization
The rule's final clause opens a second route: the lawyer, or a person the lawyer is assisting, may instead "reasonably expect[] to be so authorized."10 This route serves the lawyer who holds no permission yet but has good reason to expect it, such as one whose motion for admission pro hac vice is on file awaiting a ruling. The weight falls on reasonably. The rule protects an expectation that the facts support, and it does not protect a hope that rests on nothing concrete.
Litigation does not pause while a court decides who may appear. A client who retains an out-of-state lawyer for a pending case needs witnesses located, documents read, and facts gathered long before the court rules. If the safe harbor opened only when the order issued, the lawyer would have to choose between leaving the client without help and risking a charge of unauthorized practice. Either choice would undercut the client's right to counsel of choice, one of the reasons Rule 5.5 permits limited and usually temporary practice by out-of-state lawyers at all.11
The permitted work is broad. A lawyer anticipating admission pro hac vice may meet with the client, interview prospective witnesses, review documents, and even take depositions in the state, provided that the lawyer does so temporarily while reasonably expecting to be admitted.12 The list reaches the ordinary work of preparing a case, depositions included. The condition that the work occur while the expectation lasts supplies the limit. The route covers the interval before the ruling, and it does not authorize a standing practice in the state, which the temporary-practice threshold forbids.
The word reasonably keeps the allowance tied to the tribunal. Paragraph (c)(2) relies on the court's authority, and that reliance means something only if the lawyer has put the question to the court or is positioned to do so. A bare claim of expectation would let a lawyer invoke the safe harbor on his own say-so while no court ever looked at his work. The test therefore asks what concrete path to authorization existed when the work was done. A pending motion is the clearest path. A prediction that the court would probably be agreeable forecasts an outcome and shows nothing about any request made.
Farrell's difficulty is the missing path. The suit is pending and his work relates directly to it, so two conditions are met, but the third, authorization or a reasonable expectation of it, is absent.
Nakamura's protection lasts only as long as her path does. If the court grants the motion, she moves to the first route, because an order now authorizes her to appear. If the court denies it, the basis for expecting authorization disappears, and any further work in the state must find shelter elsewhere or stop. An exam stem on this route signals the answer through what the lawyer did about authorization. A filed and pending motion supports the expectation, while a stem that mentions only the lawyer's confidence or the judge's friendliness describes a hope.
Services Tied to the Proceeding
The second question the paragraph asks concerns the work itself. The rule protects temporary services "in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction."14 The authorization routes ask about the lawyer; this element asks what the lawyer is doing. Three phrases do the work. "In or reasonably related to" sets how close the services must stand to the proceeding, "pending or potential" sets when the proceeding must exist, and "this or another jurisdiction" sets where the tribunal may sit. A fact pattern satisfies the connection element only when the services clear all three.
The rule requires the link because the tribunal's authorization attaches to a proceeding. An order admitting a lawyer pro hac vice permits the lawyer to appear in a particular proceeding, and the rule speaks of authorization "to appear in such proceeding."15 If the work could be unrelated, a lawyer admitted for one dispute could treat the order as cover for any other service to the client in the state. The link must nevertheless be broad enough to match how litigation is done. Witnesses, documents, and deposition sites lie wherever they happen to lie, and preparation for a single case regularly crosses state lines before anyone stands in a courtroom. The rule therefore reaches work "in or reasonably related to" the proceeding, which includes preparation far from the courthouse.
The phrase "this or another jurisdiction" means that the proceeding and the services need not share a state. If litigation is proceeding in South Dakota and a deposition requires a trip to Minnesota, a lawyer admitted only in South Dakota who makes the trip is not subject to discipline for unauthorized practice of law in Minnesota.16 The services take place in Minnesota, the state whose regulation is in question, and they serve a proceeding elsewhere. That is the arrangement "another jurisdiction" contemplates.
The phrase "pending or potential" extends the category backward in time to work done before any case is filed. A lawyer who expects a suit may need to locate witnesses, secure records, and learn the facts long before a complaint exists, and the rule treats an anticipated proceeding as enough.17 The qualifying work is the ordinary preparation of a case: meeting with the client, interviewing prospective witnesses, reviewing documents, and even taking depositions in the state, so long as the lawyer does it temporarily.18 The word potential still needs a limit. Every engagement carries the bare possibility of a dispute someday, and if that possibility sufficed, the connection requirement would disappear. The proceeding must be a realistic prospect on the facts, such as a dispute that has hardened into a claim the client has decided to bring.
Involvement in one proceeding does not protect everything a lawyer does for that client in the state. The next facts show why.
Halloran's suit is already pending, a stronger fact than Ikeda's anticipated one, so the difference lies in what each lawyer did. Ikeda's work serves a case, and Halloran's serves a transaction. The connection runs to the proceeding, and the client's other needs do not inherit it. A stem that mentions a lawsuit in its opening lines and then describes drafting or negotiating a deal is testing this point.
Work with no tribunal behind it must find shelter elsewhere, either in association with a locally admitted lawyer under paragraph (c)(1) or in a tie to the lawyer's home practice under paragraph (c)(4), which a later section takes up. The words "related to" in paragraph (c)(2) refer to the proceeding, and whether work relates to the lawyer's home practice is a separate inquiry. A satisfied connection element also leaves the rest of the analysis open: the lawyer must still be an eligible visitor providing temporary services who is authorized, or reasonably expects to be authorized, to appear.