Concept
Applying Rule 5.5(c): Gates, Then Harbors
Temporary out-of-state practice permitted under Rule 5.5(c)
Applying Rule 5.5(c): Gates, Then Harbors
A lawyer who crosses a state line to work for a client needs a safe harbor, and most fact patterns turn on two of them. Rule 5.5(c)(1) shelters temporary services undertaken in association with a lawyer admitted in this jurisdiction who actively participates in the matter.1 Rule 5.5(c)(2) shelters temporary 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 so authorized.2 Neither category is where the analysis starts. Each protects only a visitor who has already cleared the threshold questions taught earlier in this chapter. A lawyer who fails an early question never needs a harbor, and a lawyer who clears them all must still name the safeguard that stands in for a local license.
The first three steps are gates and the last three are harbors. A gate asks about the lawyer or the character of her stay, while a harbor asks what safeguard is attached to the work, and a safeguard cannot repair a defect in the visitor. An actively participating local lawyer does nothing for a lawyer suspended in a third state, and a court's authorization to appear in one case does nothing for a lawyer who has opened an office. The line that cannot be crossed is the office or other systematic and continuous presence. No safe harbor exists for it, because the exceptions in paragraph (c) cover occasional, episodic practice related to the lawyer's activities in her admitting jurisdiction.8
A lawyer who clears every step looks like this. Litigation is proceeding in South Dakota, and a deposition must be taken in Minnesota. A lawyer admitted only in South Dakota who travels there is working in a state where she is not admitted, so she needs a harbor. The trip is one episode in one matter, so it is temporary. A deposition for a pending proceeding is reasonably related to that proceeding, which is the territory of paragraph (c)(2). She is therefore not subject to discipline in Minnesota for the unauthorized practice of law.9 Exam facts rarely run so smoothly. They change one fact, and one step fails.
Dalton clears the first three steps. Negotiating for a client in New Mexico is practice there, he is an eligible visitor, and three trips on one matter involve no office and no standing presence. He then fails every harbor. No tribunal is involved, so paragraph (c)(2) has nothing to attach to. Ortiz's participation exists only on paper, so paragraph (c)(1) fails. The engagement grew out of no Colorado practice, so the home-practice categories fail as well. Dalton has practiced in New Mexico without authority.
Active participation decided Dalton's case, and it is measured by conduct. Had Ortiz reviewed each draft, sat through the three sessions, and stood behind the advice the client received, step five would be satisfied on otherwise identical facts. A listing on an engagement letter shows that an association was announced, not that the local lawyer is participating. Dalton's matter also shows why transactional lawyers have the harder time. A litigator can seek pro hac vice admission from the court supervising the case, but in Birbrower the firm did only negotiation, arbitration, and document drafting, so no supervising court existed to which it could appeal. Business lawyers have no comparable mechanism and must find a local partner or a link to their home practice.10
A pending motion can tempt a reader to treat a lawyer as authorized for everything she does in the state. Reyes shows why that is wrong.
The March deposition clears every step. She entered Arizona, she is an eligible visitor, the trip was one episode in one matter, and the work was in a pending proceeding in which a filed motion gave her a reasonable expectation of authorization.11 The April practice stops at step three. A suite with her name on the door and a stream of unrelated local matters is a systematic and continuous presence, and the exceptions in paragraph (c) offer nothing for it.12 Even a later grant of the motion would leave the April practice where it was, because admission pro hac vice is a limited-purpose authorization for a single matter.13 A harbor protects a kind of work and never a lawyer in general. An exam stem that opens with a good harbor, such as a pending motion or an active local partner, and mentions the office, the suspension, or the advertisement several sentences later is testing whether you stop at the gate.
The two principal harbors are tested independently, so a single matter may satisfy both. A lawyer working in a pending proceeding beside an actively participating local lawyer needs only one of them. A lawyer with neither a local partner nor a tribunal must look to the home-practice categories.
Those categories rest on a different safeguard, the lawyer's existing practice elsewhere. An arbitral tribunal has no authority to grant effective pro hac vice admission, and so arbitration and other alternative dispute resolution get their own category, which covers work related to the lawyer's practice in a state where she is admitted.14 The residual category for other temporary services uses the same link, so the question becomes what the work grew out of.15 A lawyer who follows a regular client across a border to close a deal, with no suit and no local partner, fits the pattern. Dalton shows the reverse. His New Mexico engagement came from a company with no tie to his Colorado practice, so with no local lawyer working and no home-practice link, nothing was left to protect him.