Legal Ethics

Ethics 20/20 Panel Seeks Input on Whether UPL Rule Should Be Changed to Accommodate New Technology

Corrected: Even while making final plans to present a series of resolutions to the ABA House of Delegates in early August during the association’s 2012 Annual Meeting, the Commission on Ethics 20/20 continues to grapple with a few unfinished pieces of business.

One of those issues revolves around the question of what certain language in Rule 5.5 of the ABA Model Rules of Professional Conduct means in the context of technology that makes it easier for lawyers to practice law in a jurisdiction even if they’re not physically there.

The commission is considering possible amendments to Model Rule 5.5, which addresses unauthorized practice of law issues. But it is first seeking feedback from practitioners, academics and others in the legal profession on a few different approaches. The commission is asking that comments be sent to Natalia Vera, its senior research paralegal, at Natalia Vera no later than July 31.

“Traditionally, a U.S.-licensed lawyer who established a physical presence in another U.S. jurisdiction had to obtain a license to practice there,” states the commission in a two-and-a-half-page issues paper (PDF) issued Tuesday. “Model Rule 5.5(b)(1) largely reflects this view, requiring a lawyer to obtain a license in a jurisdiction if the lawyer has an office or a ‘systematic and continuous’ presence there, unless the lawyer’s work falls within one of the exceptions identified in Rule 5.5(d).”

The exceptions allow a lawyer to provide legal services in a jurisdiction where he or she is not admitted if the services are provided to the lawyer’s employer, or that the lawyer is authorized to provide under other law in the jurisdiction or by federal law, under revisions adopted by the House of Delegates in 2002 at the recommendation of the Commission on Multijurisdictional Practice.

Since 2002, however, “the proliferation of lawyers’ use of technology has raised new questions about the meaning of the phrase ‘systematic and continuous presence’ in Rule 5.5(b),” states the Ethics 20/20 Commission’s issues paper. “In particular, technology now enables lawyers to be physically present in one jurisdiction, yet have a substantial virtual practice in another. The problem is that it is not always clear when this virtual practice in a jurisdiction is sufficiently ‘systematic and continuous’ to require a license in that jurisdiction.”

In September 2011, the commission circulated a draft proposal (PDF) to amend Model Rule 5.5, but went back to the drawing board after receiving a number of comments suggesting that the amendments might tend to cloud the issue further rather than clear it up.

In its issues paper, the commission sets forth three possible approaches—only one of which would propose amendments to Model Rule 5.5.

That approach, states the issues paper, would “identify the factors that lawyers and disciplinary authorities should consider when deciding whether a lawyer’s presence has become sufficiently systematic and continuous to trigger Rule 5.5(b)’s requirement that the lawyer become licensed.”

A second possibility would be to make no proposal on the issue, but refer it to the Standing Committee on Ethics and Professional Responsibility as a potential topic to be addressed in a formal opinion. The commission also might follow a third route and make no recommendations to amend Model Rule 5.5, but issue a white paper that provides an in-depth analysis of the issue.

The commission will make its decision on how to proceed in the fall so that it will have time to prepare a report that will go to the House of Delegates in time to be considered in February at the 2013 ABA Midyear Meeting in Dallas.

Updated June 29 to link to the correct draft proposal.

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