Legal Ethics

Model Ethics Rule Allows Lawyers to Practice in New State for Up to a Year, Pending Admission

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Lawyers who move to a new state can practice there for up to a year while seeking admission under a new model ethics rule approved Monday by the ABA House of Delegates.

A comment to the rule explains why it is needed. “This rule recognizes that a lawyer admitted in another jurisdiction may need to relocate to or commence practice in this jurisdiction, sometimes on short notice,” the comment states. “The admissions process can take considerable time, thus placing a lawyer at risk of engaging in the unauthorized practice of law and leaving the lawyer’s clients without the benefit of their chosen counsel. This rule closes this gap by authorizing the lawyer to practice in this jurisdiction for a limited period of time, up to 365 days, subject to restrictions, while the lawyer diligently seeks admission.”

The new ABA Model Rule on Practice Pending Admission, set forth in Resolution 105D, allows lawyers to practice in the new jurisdiction if:

• They have an active license in another jurisdiction and they have been engaged in the active practice of law for three of the last five years.

• They are not disbarred, suspended or facing discipline.

• They did not fail the bar exam in the new jurisdiction.

• There were not previously denied admission in the new jurisdiction.

• They associate with a lawyer admitted to practice in the new jurisdiction.

The rule also outlines the procedures the lawyers must follow, including submitting an admissions application within 45 days. During the yearlong period, the lawyers may not represent themselves as being admitted to practice in the new jurisdiction. A court could extend the 365-day period for good cause.

Jequita Napoli of the National Conference of Bar Examiners spoke in opposition to the rule, calling it “a dramatic change in how we operate.” Napoli said the measure is actually a bar admissions rule, but it’s being couched as an ethics rule. “This is complicated,” she said. “There are bar discipline issues, there are regulatory considerations.”

But John Berry of the National Organization of Bar Counsel said the new model rule has protections that will protect legal consumers. Several states have similar rules, and they have not reported difficulties or problems, he said.

The new rule was proposed by the Commission on Ethics 20/20, appointed in 2009 to study the impact of technology and globalization on the legal profession.

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