Should a bar license function like a driver's license? Advocates say multi-jurisdictional practice rules should change
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Charity Anastasio and Micah Buchdahl share the opinion that the rules on multi-jurisdictional practice for attorneys need to be changed.
On Friday, during an ABA Techshow 2024 panel titled, “One Bar License, Will Travel—Are Changes in Multi-Jurisdictional Rules on the Way?” Anastasio and Buchdahl said the COVID-19 pandemic, advances in legal technology and increases in competition all have changed how lawyers do business. They also argued that rules that provide guidance to the legal profession aren’t keeping up.
Rule 5.5 of the ABA Model Rules of Professional Conduct says a lawyer not admitted to practice in a particular jurisdiction shall not establish an office or continuous presence in that jurisdiction, except as authorized by the ethics rules or other law. An out-of-state lawyer can practice in the particular jurisdiction on a temporary basis in limited circumstances. There are also exceptions for in-house lawyers.
“There are some pressures here,” said Anastasio, practice and ethics counsel at the American Immigration Lawyers Association in Washington, D.C. “[Lawyers are] one of the pressure points because we want to be able to work where we want to work. There is obviously modernization, and I also think our clients think it’s so weird we can only practice in one state.”
In April 2022, the Association of Professional Responsibility Lawyers sent a letter to the ABA, suggesting the association change its model rules to allow licensed lawyers to provide legal services anywhere. The suggested rule change, which could be adopted by any state, says lawyers would have to disclose where they are admitted to practice, and they couldn’t practice in a different jurisdiction if they have been suspended or disbarred.
“How do you only practice law within your state boundaries when we’re in a global economy and a global world?” asked Anastasio, who also is the chair of the ABA Law Practice Division’s Professional Development Board. “It’s kind of a preposterous concept, right? [The Association of Professional Responsibility Lawyers]’s point is, ‘Do I stop knowing how to drive when I drive outside of Maryland? And as soon as I get to the border in Virginia, I’ve forgotten how to drive?’ It doesn’t make sense.”
In the works
Last year, the ABA Center for Professional Responsibility created the Working Group on Model Rule of Professional Conduct 5.5 and began exploring possible changes.
Buchdahl, the president of HTMLawyers Inc., a law marketing consultancy in Moorestown, New Jersey, said he often hears divergent arguments on Model Rule 5.5. Some attorneys want the ability to practice and grow their business in more than one state, while others argue that option means attorneys can come into their state and take business from them.
Micah Buchdahl and Charity Anastasio share the opinion that the rules on multi-jurisdictional practice for attorneys need to be changed. (Photo by Amanda Robert/ABA Journal)“But whenever people cite the ABA model rules, I say the ABA model rules are model rules,” said Buchdahl, a past chair of the ABA Standing Committee on Continuing Legal Education and the Law Practice Division. “They might be used in various states, but the state controls their own rules and decides what rules they are going to have and how they will implement them.”
Anastasio and Buchdahl pointed out that states have handled Rule 5.5 in largely different ways.
For example, Missouri issued an informal opinion in January finding that any lawyer who practices law within the state—even if they are representing clients or working for a firm located in a different jurisdiction—must be licensed in Missouri. Otherwise, they are engaging in the unauthorized practice of law.
In May 2023, however, Michigan took a different approach. According to adopted changes to its Rule 5.5, lawyers from other states can practice while in Michigan as long as they do not say they have an office, provide legal services or offer to provide legal services in Michigan.
Because changes in Rule 5.5 have varied state by state, lawyers need to approach their state bar associations to make the case for potential reforms, Anastasio and Buchdahl said.
“Obviously there has been movement, and movement is not a bad thing in the legal profession,” Anastasio said. “Say it loud, say it proud. We should be able to practice anywhere we can drive.”
Follow along with the ABA Journal’s coverage of the ABA Techshow 2024 here.
