Concept

Other Safe Harbors in Rule 5.5(c)

Temporary out-of-state practice permitted under Rule 5.5(c)

Other Safe Harbors in Rule 5.5(c)

Paragraphs (c)(1) and (c)(2) each depend on someone other than the visiting lawyer. Paragraph (c)(1) depends on a lawyer admitted in this jurisdiction who actively participates in the matter,¹ and paragraph (c)(2) depends on authority to appear before a tribunal, whether already granted or reasonably expected.² Many out-of-state matters fit neither: a mediation in a private forum, or a deal negotiated across a border for a client with no lawsuit anywhere. Paragraphs (c)(3) and (c)(4) reach those matters, and they rest on a different foundation, the visitor's own practice in a jurisdiction where she is admitted.

Paragraph (c)(3) covers arbitration, mediation, and similar proceedings. Paragraph (c)(4) catches the temporary work that the other paragraphs leave behind. Both operate under the same limits as the first two: the services must be temporary, and the visitor may not establish a systematic and continuous presence in the state.³ Test the specific paragraphs before the catch-all, because the catch-all applies by its terms only to services outside (c)(2) and (c)(3).⁴

Alternative Dispute Resolution

Rule 5.5(c)(3) protects temporary services in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction.⁵ The proceeding need not have begun, because a potential one counts. Two conditions apply. The services must arise out of or be reasonably related to the lawyer's practice in a jurisdiction where she is admitted, and they must not be services for which the forum requires pro hac vice admission.⁶

The home-practice condition lets a lawyer carry an existing representation across the border. When a regular client becomes a party to an arbitration in another state, the lawyer who already knows the client's business may take part in the proceeding, and the client keeps the counsel it chose.⁷ The condition also anchors the paragraph to a real practice. A lawyer with no such connection to the dispute gets nothing from paragraph (c)(3), or from paragraph (c)(4), which imposes the same requirement. She must look elsewhere in Rule 5.5(c), to association with local counsel under (c)(1) for example.

The pro hac vice condition marks the point where the forum's own admission rules take over. If the forum requires pro hac vice admission for the services, paragraph (c)(3) does not apply, and the lawyer must either obtain that admission or satisfy paragraph (c)(2), which asks whether she is authorized to appear or reasonably expects to be.⁸ A lawyer who reasonably expects to be admitted may meanwhile meet the client, interview witnesses, review documents, and even take depositions in the state, so long as the work stays temporary.⁹

Hypothetical Illustration

Tran, admitted only in Oregon, has represented a Portland client in its business affairs for years. The client becomes a party to an arbitration seated in Seattle. No lawsuit exists anywhere, and Washington does not require pro hac vice admission for the arbitration. Tran travels to Seattle for the hearings. Pelletier, admitted only in Illinois, has likewise represented her client at home for years, and the client is defending a suit pending in an Indiana state court. The judge orders the parties to mediate in Indianapolis. Indiana requires out-of-state lawyers to be admitted pro hac vice before taking part in the pending case, including the court-ordered mediation, and Pelletier has not sought admission. Tran's services arise from his Oregon practice and need no admission, so paragraph (c)(3) covers him. Indiana demands admission for Pelletier's mediation, which puts it outside paragraph (c)(3). She must obtain admission or look to paragraph (c)(2).

Both lawyers have a home-practice link, so that condition does not separate them. The forum's admission requirement does. A stem that says arbitration or mediation has therefore not yet chosen the paragraph. Ask whether the forum requires pro hac vice admission for the service in question. Using (c)(3) also leaves the rest of Rule 5.5 in force: the lawyer may not establish a systematic and continuous presence in the state or hold herself out as admitted there.¹⁰

Services Tied to Home Practice

Rule 5.5(c)(4) is the catch-all. It protects temporary services that are not within paragraphs (c)(2) or (c)(3) and that arise out of or are reasonably related to the lawyer's practice in a jurisdiction where the lawyer is admitted.¹² Its two conditions do different work. The exclusion makes the paragraph residual, and the link ties the services to the lawyer's home practice.

Because it is residual, the catch-all is the last paragraph to check. Paragraph (c)(2) already governs work tied to a proceeding before a tribunal, and paragraph (c)(3) governs arbitration, mediation, and similar proceedings. What remains is chiefly transactional and advisory work with no tribunal behind it, and interstate practice produces plenty of that. A lawyer in one state may represent a client in another about a matter that involves a third state, and even a lawyer with a local clientele may find a client party to a multistate transaction.¹³ Nearly every out-of-state litigator can point to a home client. If that link could carry proceeding-related work through (c)(4), the authorization requirement in (c)(2) would mean little, so the catch-all offers no way around it.

The link asks what the work grows out of. A lawyer who regularly represents a client at home and follows that client across the border to negotiate and close a deal fits the paragraph. No tribunal or ADR proceeding is involved, the work grows out of the home practice, and the visit is temporary. The client keeps a lawyer who knows its business, which serves the interests Rule 5.5 protects: a client's right to counsel of choice and the interstate nature of the matter can justify limited, temporary permission,¹⁴ and excessive barriers to interstate practice add unjustified costs to clients.¹⁵

The Restatement's treatment of such work appears to turn on two facts. The matter lay within the lawyer's regular field of practice, and the out-of-state client initiated the request rather than the lawyer holding himself out as a lawyer in the other state.¹⁶ Subject matter and initiative both count. A lawyer who solicits business in the other state, by targeted advertising for instance, looks like one holding out and not like one answering a client's call.¹⁷

Hypothetical Illustration

Haverford, admitted only in Arizona, has represented an Arizona developer in its real estate deals for years. The developer agrees to buy a hotel in Reno, and Haverford spends a week there negotiating the purchase and attending the closing before returning home. No lawsuit or arbitration exists, and no Nevada lawyer works beside him. Pruitt, also admitted only in Arizona, is a Phoenix tax lawyer. He mails postcards to Nevada residents, rents a suite in Henderson, and meets walk-in clients there several days each month, taking whatever matters arrive, including divorces and injury claims. Haverford's work grows out of his Arizona practice and came to him through his client, so paragraph (c)(4) covers it. Pruitt's Nevada work has no connection to his tax practice or to any existing client, and his advertising and suite amount to the standing presence and holding out that the rule forbids.

Pruitt fails on two independent grounds, and either would suffice. His Nevada work has no connection to his tax practice or to any existing client, so the link is missing. The rented suite and the postcards also amount to the systematic and continuous presence and the holding out that the rule forbids, whatever the link shows.¹⁸ Haverford's result depends on timing as well as the link, because a week in Reno for one deal is temporary and a standing arrangement would not be. A stem that stresses the client's home-state residence or the lawyer's good standing describes only the opening conditions, and neither supplies the link, which concerns the lawyer's practice. A stem that mentions a pending suit points away from this paragraph and toward (c)(2).

The catch-all does not loosen the limits that run beneath every safe harbor. Services in the other state must be temporary, and a lawyer not admitted there may not establish a systematic and continuous presence for the practice of law, a ban that reaches virtual presence created through concerted and regular use of electronic media as well as a physical office.¹⁹ The lawyer also may not hold herself out as authorized to practice in the state.²⁰ One class of facts drops out of the analysis entirely. Advice given to a client from the lawyer's home state is not practice in another state even when it concerns that state's law, because the lawyer's physical or virtual location, and not the source of the law, decides where the practice occurs.²¹ The catch-all matters when the lawyer enters the state, and it protects that entry only while the visit stays temporary and tied to the home practice.