By David C. Carr
The great California lawyer, writer, and historian Carey McWilliams referred to the Golden State as “the great exception.”[1] In legal ethics as in so many other things, that description holds up.
California was one of the last states to adopt a version of the American Bar Association (ABA) Model Rules of Professional Conduct. Finally, after almost twenty years of effort, that occurred in November 2018. As in all states, our California Rules of Professional Conduct differ from the Model Rules. But California’s version probably differs more than any other state. While we have adopted the ABA numbering system and many Model Rules, concepts particular to California ethics law abound. To use an automotive metaphor, it is a California engine in an ABA chassis.
While technology has made remote work a reality for more than two decades,[2] the COVID pandemic has made remote work the norm, not the exception, for many lawyers. The new emphasis on remote work has pushed the plight of the “extrajurisdictional”[3] lawyer into the spotlight. For this article, an extrajurisdictional lawyer is defined as one practicing law with the aid of technology while physically located outside the jurisdiction where they are licensed. There are two variations of this problem: the California lawyer practicing California law while living in another state and the State X lawyer practicing State X law while living in California.
California Rule 5.5, like ABA Model Rule 5.5, addresses both variations. California Rule 5.5(a)(1) says a “lawyer admitted to practice law in California shall not: … practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.”
California Rule 5.5(b) says a “lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.”
A principal difference is that ABA Model Rule 5.5(c) contains a number of safe harbors for extrajurisdictional lawyers that California has not adopted.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
California does have some of the safe harbors for extrajurisdictional lawyers as ABA Model Rule 5.5 has, but these are contained in the Californa Rules of Court, rules 9.40 through 9.48. Lawyers seeking limited scope admission in California under these rules must apply and obtain a moral character clearance, and some are subject to strict registration under California State Bar rules.[4]
Some states have gone farther than the Model Rules, and much farther in sanctioning extrajurisdictional practice.
New Mexico’s version of 5.5 removes the “temporary” qualification: “A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction may provide legal services in this jurisdiction …if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. In transactions involving issues specific to New Mexico law, the lawyer shall associate counsel admitted to practice in this jurisdiction.”[5]
Arizona’s version of 5.5 phrases it a little differently: A lawyer admitted in another United States jurisdiction, or a lawyer admitted in a jurisdiction outside the United States, not disbarred or suspended from practice in any jurisdiction, may provide legal services in Arizona that exclusively involve federal law, the law of another jurisdiction, or tribal law.[6]
While California lawyers seeking to relocate to these states would appear to have little problem continuing to virtually practice California law for their California clients in these jurisdictions, consultation with ethics counsel in those jurisdictions would be a wise move.
By contrast, California, 5.5(b)(1) flatly prohibits any systematic or continuous presence for law practice without limiting itself to California law. That includes “establishing a resident office” an undefined term but is not limited to this, whatever it means. A lawyer admitted in Ohio living in California who is virtually practicing Ohio law for Ohio clients at home with her laptop conceivably comes within this definition.
The Bar Association of San Francisco (BASF) published its formal ethics opinion 2021-1[7] on August 8, 2021, addressing the extrajurisdictional lawyer in California. They concluded:
A lawyer who is not licensed in California and who does not advertise or otherwise hold himself or herself out as a licensed California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in California, and does not represent a California person or entity, but is merely physically present in California while using modern technology to remotely practice law in compliance with the rules of the jurisdiction where the lawyer is licensed, should not be held in violation of California’s Unauthorized Practice of Law (“UPL”) rule and laws, specifically California Rules of Professional Conduct (“CRPC”) Rule 5.5, or the State Bar Act, Business & Professions (“B&P”) Code §§6125-6126. If such a lawyer does represent a California person or entity, whether the lawyer violates the UPL rule and laws will depend on the nature of the representation, whether the representation complies with the regulations of the jurisdiction where the lawyer is licensed, the role of other California lawyers in the representation, and other factors relevant to whether the California client is protected consistent with the purpose of the UPL rule and laws.
Emphasis added. Formal ethics opinions by bar associations and even opinions by the State Bar’s own Standing Committee on Professional Responsibility and Conduct (COPRAC) are not binding on regulators, although they are specifically mentioned as sources of guidance in California Rule of Professional Conduct 1.0, Comment 4. In its analsysis of California 5.5(b), BASF relied in part on ABA Formal Opinion 495 (issued December 16, 2020) for the proposition that a ystematic and continuous presence in the jurisdiction for the practice of law is not established if “the lawyer is neither practicing the law of the local jurisdiction nor holding out the availability to do so.” Under those circumstances, the ABA opinion concluded, the “lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law.” ABA Formal Opinion 495 does not cite California Rule 5.5 and its analysis is based entirely on Model Rule 5.5.
While the reasoning of the BASF opinion is sound, it seems a statement of what the law should be, rather than a definite statement of what the law in California is. Until we have further guidance from the California Supreme Court, perhaps in a revised version of our Rule 5.5, there will be confusion and uncertainty about what the extrajuridictional lawyer can do in California. Given California’s strong tradition of protectionism in law admission, such guidance may be a long time coming.[8]
[1] McWilliams California: The Great Exception (1949) University of Caliornia Press.
[2] See Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 128-129.
[3] Barker, William T., Extrajurisdictional Practice by Lawyers. SSRN: https://ssrn.com/abstract=270395 or http://dx.doi.org/10.2139/ssrn.270395
[4] Rules of State Bar of California, Title Three, Division 3.
[5] New Mexico Rule of Professional Conduct 16-505, emphasis added.
[6] Arizona Rule of Professional Conduct 5.5(d), emphasis added.
[7] https://www.sfbar.org/wp-content/uploads/2021/08/BASF-Ethics-Opinion-re-UPLMJP-8.2.21-Final-002.pdf
[8] COPRAC proposed formal ethics opinion 20-0004 is currently out for public comment. The opinon does not deal with extrajurisdictional practice. COPRAC is prohibted by bar rule from opining on the unauthorized practice of law (see draft opinion 20-0004, footnote 31.)