Choosing the Right Safe Harbor

Paragraphs (c)(1) and (c)(2) of Rule 5.5 both shelter temporary out-of-state work, but they shelter different work, so the first task on any fact pattern is to decide which one fits. Paragraph (c)(1) covers services undertaken in association with a lawyer admitted in this jurisdiction who actively participates in the matter.¹ Paragraph (c)(2) covers services in or reasonably related to a pending or potential proceeding before a tribunal, when the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear or reasonably expects to be.² The first asks who is working beside the visitor. The second asks what the visitor's work connects to. The quickest way to choose is to ask whether a tribunal is involved. If the matter is before a court or heading there, start with (c)(2). If it is not, start with (c)(1), or with the arbitration and home-practice harbors taught in the next sections.

Each paragraph supplies its own safeguard, and that difference is why the sorting question works. Paragraph (c)(1) rests on the active participation of a lawyer admitted in the jurisdiction. Paragraph (c)(2) rests on the tribunal's authority: the lawyer, or the person the lawyer assists, must be authorized by law or order to appear, or must reasonably expect to be. A lawyer with a court matter can ask the court for that authorization, but a lawyer negotiating a deal has no court to ask. Birbrower makes the point. The firm there did only negotiating, arbitrating, and drafting, so no supervising court existed to which it could apply for admission pro hac vice. Litigators can always seek that admission, while business lawyers have no comparable mechanism.³ For work with no tribunal behind it, the rule's route is the local-counsel paragraph, (c)(1).

Exam stems often blur the two paragraphs by lending litigation vocabulary to a deal. The next hypothetical shows how to untangle that.

Ferreira's trouble lies in his label, not in his credentials. Admission pro hac vice is something a court grants in a case, so the phrase has no application to work that has no case behind it. The right answer redirects the analysis to the local-counsel paragraph and then asks the question taught earlier: does the local lawyer actually participate?

A matter already in court shows the opposite pattern, and it can call on both safe harbors at once.

Hypothetical Illustration

Castellano, admitted only in Missouri, represents a client in a suit pending in a Kansas state court and moves for admission pro hac vice. The judge indicates that the motion will be granted only if Castellano associates a Kansas lawyer, so Castellano retains Brandt, who reads each filing and attends each hearing. While the motion is pending, Castellano interviews witnesses in Wichita, and after the order issues, she argues motions in open court. The preparation rests on a reasonable expectation of authorization and the argument rests on the order, both under paragraph (c)(2). Brandt's involvement is the court's price for that permission. Had the judge denied the motion, Castellano could no longer appear, but research and drafting done beside the actively participating Brandt would still fit paragraph (c)(1).

Each paragraph still answers only its own question. Paragraph (c)(1) asks for association with an actively participating local lawyer, and it grants nothing of what (c)(2) requires for an appearance, which is authorization by law or order or a reasonable expectation of it.⁴ Paragraph (c)(2), for its part, has no local-counsel condition in its text. When a court insists on a local partner, as the judge does in Castellano, the demand comes from the court. A lawyer who anticipates admission may meet with the client, interview witnesses, review documents, and even take depositions in the state while that expectation lasts, and (c)(2) protects that preparation without any help from (c)(1).⁵

Exam Analysis Steps

Because the two paragraphs turn on different facts, the choice goes fastest when you ask about the tribunal first and the local lawyer second. The steps are these:

Confirm that the visitor is an eligible out-of-state lawyer providing services on a temporary basis, because both paragraphs sit beneath that opening clause.
Ask whether the work is in or reasonably related to a pending or potential proceeding before a tribunal. If it is, test paragraph (c)(2).
Under paragraph (c)(2), look for authorization to appear by law or order for the lawyer or the person being assisted, or for a concrete basis, such as a pending motion for admission pro hac vice, to expect it reasonably.
Where no tribunal is involved, or where the work stops short of appearing before one, ask whether a lawyer admitted in this jurisdiction actively participates and shares responsibility. If so, rely on paragraph (c)(1).

When a stem puts a lawsuit and a local lawyer in the same fact pattern, the checklist usually ends with both paragraphs in play, and the useful exercise is to assign each piece of the visitor's work to the paragraph that covers it. Work that fits neither paragraph, such as a deal handled with no local lawyer and no proceeding, must look to the other safe harbors taught next.

Choosing the Right Safe Harbor

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