Pulling on a Fine Line
A licensed Florida lawyer may advise clients in that state on New York matters, even if he or she is not licensed in New York.
So why can’t a licensed New York lawyer advise Sunshine State residents on New York matters, even though he is not licensed in Florida?
When immigration lawyer M. Ronald Gould raised that question in a lawsuit filed against officials of the Florida Bar, a federal district court gave him an answer he didn’t like.
Gould filed his action after the bar, which has enforcement authority over Florida’s professional conduct rules for lawyers, nixed his plan to advertise his availability to advise clients on “New York legal matters only” out of an office in Miami.
“I save them money because they don’t have to fly to New York to see a lawyer, and they don’t have to pay a lawyer extra money to come see them,” says Gould, who’s been admitted to practice in New York since 1961 and has lived in Florida nearly three decades. “Many people here still have business in New York, and I want to be available to them.”
Gould’s suit argued that the Florida Bar’s restrictions on his advertising violate his free speech rights under the First Amendment and cited his “genuine and credible fear” that the bar would charge him with unauthorized practice of law (a third-degree felony under state law) if he went ahead with his plan. But in a decision issued Aug. 8, District Judge Federico A. Moreno granted the bar’s motion for summary judgment. Gould v. Harkness, No. 04-23178-CIV-MORENO (S.D. Fla.). Gould has appealed the ruling to the Atlanta-based 11th U.S. Circuit Court of Appeals.
In addition to his First Amendment claim, which the district court rejected as unfounded, Gould argued that Florida’s ethics rule on multijurisdictional practice (amended in 2005) allowed him to engage in the sort of limited practice he had in mind.
That rule, Gould says, permits attorneys from other countries to provide legal advice in Florida based on the laws of their home jurisdictions, and in-house corporate lawyers who are not licensed in Florida may give legal advice to their employers.
“But the Florida Bar says, ‘No, not you, Mr. Gould, because you are a resident of Florida,’ ” Gould says. “But all the other lawyers from New York can fly in.”
In the Florida Bar’s view, “the real issue was one of misleading the public,” says Barry Richard, a Tallahassee lawyer who represents the bar. “We said that we didn’t care what he said he wanted to do—he was holding himself out as being able to practice law in Florida.”
PRESSURE TO CHANGE
Professional conduct rules in most states don’t allow for the kind of law practice plan that Gould seeks, experts say.
“Even though lawyers from one state can temporarily enter another state to assist on client matters, they can’t cross a very clear line—they can’t have an office in a state in which they are not admitted,” says Stephen Gillers. The New York University law professor chairs the Joint Committee on Lawyer Regulation of the ABA Center for Professional Responsibility.
“It’s not the law you plan to practice; it’s where you plan to practice law,” says Gillers.
But some experts wonder if someday Gould’s approach may become acceptable, particularly if the issue continues to come under scrutiny from the federal courts.
“I don’t think the current multijurisdictional practice formulation will withstand the test of time. It will change,” says San Francisco lawyer Mark L. Tuft. He handles professional liability and legal malpractice matters. “We could have the federalization of the regulation of lawyers. I think there’s going to be pressure and test cases.”
The often delicate relationship between federal and state courts on authorization to practice law is illustrated in a case decided last year by the Philadelphia-based 3rd U.S. Circuit Court of Appeals. Surrick v. Killion, 449 F.3d 520.
In 2000, the Pennsylvania Supreme Court suspended Robert B. Surrick from law practice for five years after he alleged in pleadings that certain state court judges fixed cases. In 2001, Surrick received a 30-month reciprocal suspension from the U.S. District Court for the Eastern District of Pennsylvania. In May 2004, Surrick was readmitted to the federal court. In August 2004, the Pennsylvania Supreme Court ruled in Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, that a lawyer suspended from practice in Pennsylvania could not maintain a law office in the state for the purpose of practicing in the federal courts. Surrick later filed an action in federal court seeking a declaratory judgment affirming his stance.
The 3rd Circuit ruled for Surrick. noting that it was not seeking to overrule Marcone, the 3rd Circuit nevertheless reached a contrary ruling on the supremacy clause.
“Where federal law authorizes an agent to practice before a federal tribunal, the federal law pre-empts a state’s licensing requirements to the extent that those requirements hinder or obstruct the goals of federal law,” states the 3rd Circuit opinion. And because “the maintenance of a law office is incident to the practice of law,” the opinion states, “the Eastern District of Pennsylvania’s power to determine who may practice law before it pre-empts Pennsylvania law barring an unlicensed attorney from maintaining a law office.”
Some states have taken a similar approach. Opinions issued during 2006 by the Unauthorized Practice of Law Committee of the U.S. Court of Appeals for the District of Columbia Circuit (Opinion 17-06) and the Virginia State Bar (Opinion 210) have held that lawyers not licensed in those jurisdictions still may maintain practices limited to federal matters.
Some lawyers have advocated “the driver’s license solution,” Tuft says, which holds that if a lawyer is licensed somewhere, he or she should be able to practice law anywhere. Under that theory, a lawyer would follow the rules of whatever state he or she practiced in, and that state would have disciplinary power, regardless of whether the lawyer was licensed there.
Gould believes his case has potential to push the envelope a little further in that direction. “The chances of this going to the [U.S.] Supreme Court are 99.9 percent,” Gould says. “Because no matter who wins, we both are going to go to the Supreme Court. I haven’t worked all this way just to go to the 11th Circuit.”