Practice boundaries and structure - Multijurisdictional prac...

Learning Outcomes

After reading this article, you will be able to identify when a lawyer may lawfully practice outside their home jurisdiction, distinguish between authorized and unauthorized multijurisdictional practice, and apply the Model Rules to scenarios involving law firm structure, partnerships with non-lawyers, and fee-sharing. You will also be able to answer MPRE-style questions on these topics.

MPRE Syllabus

For the MPRE, you are required to understand the boundaries of lawful legal practice across jurisdictions and the rules governing law firm structure. This article covers:

• The prohibition on unauthorized practice of law and its exceptions.
• Temporary and permanent multijurisdictional practice under the Model Rules.
• The rules for association with non-lawyers, including partnerships and professional corporations.
• Fee-sharing restrictions and permissible arrangements.
• The definition and regulation of law firms and other forms of practice.
• The sale of a law practice and contractual restrictions on the right to practice.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is generally required for a lawyer to practice law in a state where they are not admitted?
   1. The lawyer is admitted in any U.S. jurisdiction.
   2. The lawyer associates with local counsel who actively participates in the matter.
   3. The lawyer is supervised by a non-lawyer employee.
   4. The lawyer is on inactive status in their home state.
2. Under the Model Rules, a lawyer may form a partnership with a non-lawyer if:
   1. The non-lawyer does not share in profits.
   2. The partnership does not engage in the practice of law.
   3. The non-lawyer is only an office manager.
   4. The non-lawyer is a certified public accountant.
3. Which of the following is NOT a permissible exception to the prohibition on unauthorized practice of law?
   1. Temporary practice in anticipation of a proceeding where the lawyer expects pro hac vice admission.
   2. Providing legal services only to the lawyer’s employer in another state.
   3. Representing clients in a state where the lawyer is not admitted, without any local association or authorization.
   4. Temporary practice in connection with mediation arising out of the lawyer’s home state practice.
4. A law firm’s office manager, who is not a lawyer, is given the title “Vice President” and shares in firm profits. Is this arrangement proper under the Model Rules?
   1. Yes, if the office manager does not direct legal work.
   2. Yes, if the office manager is supervised by a partner.
   3. No, because a non-lawyer may not be an officer or share in profits of a law firm.
   4. No, unless the office manager is a retired lawyer.

Introduction

Lawyers must comply with strict rules about where and how they may practice law. Practicing outside one’s licensed jurisdiction without proper authorization is prohibited and may result in discipline. However, the Model Rules provide specific exceptions for temporary and permanent practice in other jurisdictions. Additionally, the structure of law firms and the involvement of non-lawyers are tightly regulated to protect the public and the integrity of the profession.

Key Term: Unauthorized Practice of Law
Providing legal services in a jurisdiction where a lawyer is not admitted, unless an exception applies under the Model Rules.

Multijurisdictional Practice: The General Rule

A lawyer may not practice law in a jurisdiction where they are not admitted, nor may they assist another in doing so. This includes establishing an office or holding out to the public as authorized to practice in that jurisdiction.

Key Term: Multijurisdictional Practice
The provision of legal services by a lawyer in a jurisdiction where the lawyer is not admitted, subject to specific exceptions under the Model Rules.

Exceptions Permitting Temporary Practice

The Model Rules allow certain temporary legal services in a jurisdiction where the lawyer is not admitted, provided the lawyer is in good standing elsewhere. Temporary practice is permitted in these situations:

• The lawyer associates with a local lawyer who actively participates in the matter.
• The services are in or reasonably related to a pending or potential proceeding before a tribunal, and the lawyer is authorized or expects to be authorized for that proceeding (e.g., pro hac vice).
• The services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding, if the services arise out of the lawyer’s home-state practice and local law does not require pro hac vice admission.
• The services are not otherwise covered but arise out of or are reasonably related to the lawyer’s practice in their home jurisdiction.

Key Term: Pro Hac Vice
Permission granted by a court to a lawyer not admitted in that jurisdiction to participate in a specific case.

Permanent Practice Exceptions

A lawyer may establish a systematic and continuous presence in another jurisdiction only if:

• The lawyer provides legal services solely to their employer or its affiliates (e.g., in-house counsel), and local law does not require pro hac vice admission.
• Federal or local law authorizes such practice.

Unauthorized Practice: Prohibited Conduct

A lawyer who practices outside these exceptions, or who assists a non-lawyer or unlicensed lawyer in doing so, is subject to discipline. Non-lawyers who engage in unauthorized practice may also face civil or criminal penalties.

Association with Non-Lawyers and Law Firm Structure

The Model Rules strictly limit the involvement of non-lawyers in law firm ownership and management:

• Lawyers may not form a partnership with a non-lawyer if any of the partnership’s activities involve the practice of law.
• Non-lawyers may not be officers, directors, or have the right to direct or control a lawyer’s professional judgment in a professional corporation or association authorized to practice law.
• Fee-sharing with non-lawyers is generally prohibited, with limited exceptions (e.g., payments to a deceased lawyer’s estate, retirement plans, or sharing court-awarded fees with a non-profit organization).

Key Term: Law Firm
An association of lawyers authorized to practice law, including partnerships, professional corporations, and legal departments of organizations.

Key Term: Fee-Sharing
The division of legal fees with non-lawyers, which is generally prohibited except for specific exceptions under the Model Rules.

Key Term: Partnership with Non-Lawyer
An arrangement where a lawyer and a non-lawyer jointly own or manage a business that engages in the practice of law, which is not permitted under the Model Rules.

Sale of a Law Practice

A lawyer may sell their law practice, or an area of practice, if:

• The seller ceases to practice law (or in that area) in the relevant jurisdiction.
• Written notice is given to clients, who may seek other counsel.
• The entire practice or area is sold to one or more lawyers or law firms.
• Client fees are not increased due to the sale.

Key Term: Sale of Law Practice
The transfer of all or part of a law practice to another lawyer or law firm, subject to strict requirements under the Model Rules.

Contractual Restrictions on Practice

Lawyers may not enter into agreements that restrict their right to practice after leaving a firm, except for retirement benefits or as part of the sale of a law practice. Settlement agreements may not include restrictions on a lawyer’s right to represent other clients.

Worked Example 1.1

A lawyer admitted only in State A is asked to represent a client in a contract dispute in State B. The lawyer associates with a State B lawyer who actively participates in the case. Is this arrangement permitted?

Answer:
Yes. The Model Rules allow temporary practice in another jurisdiction if the lawyer associates with local counsel who actively participates in the matter.

Worked Example 1.2

A law firm’s office manager, who is not a lawyer, is given the title “Vice President” and receives a share of the firm’s profits. Is this allowed?

Answer:
No. Non-lawyers may not be officers of a law firm or share in its profits. This arrangement violates the Model Rules.

Worked Example 1.3

A lawyer admitted in State X is employed as in-house counsel for a corporation with offices in State Y. The lawyer provides legal advice only to the corporation and its affiliates in State Y. Is this permanent practice allowed?

Answer:
Yes, provided State Y does not require pro hac vice admission for such services. In-house counsel may provide legal services to their employer in another jurisdiction.

Exam Warning

Practicing law in a state where you are not admitted, without meeting an exception, is a disciplinary violation—even if you are supervised by a lawyer admitted in that state.

Revision Tip

Always check whether an arrangement involves the practice of law and whether all participants are properly licensed. Pay special attention to the rules on firm structure and non-lawyer involvement.

Key Point Checklist

This article has covered the following key knowledge points:

• Unauthorized practice of law is prohibited unless an exception applies.
• Temporary practice is allowed in limited circumstances (e.g., pro hac vice, association with local counsel).
• Permanent practice in another jurisdiction is permitted only for in-house counsel or if authorized by law.
• Lawyers may not form partnerships with non-lawyers if any activities involve the practice of law.
• Non-lawyers may not be officers or share in profits of a law firm.
• Fee-sharing with non-lawyers is generally prohibited, with narrow exceptions.
• The sale of a law practice is allowed under strict conditions.
• Contractual restrictions on a lawyer’s right to practice are not permitted, except for retirement or sale of practice.

Key Terms and Concepts

• Unauthorized Practice of Law
• Multijurisdictional Practice
• Pro Hac Vice
• Law Firm
• Fee-Sharing
• Partnership with Non-Lawyer
• Sale of Law Practice