Oregon State Bar Bulletin — JUNE 2007
Bar Counsel
A UPL Conundrum:
Where to Draw the Boundaries on Out-of-State Practice

By Sylvia Stevens

Except as provided in this section, a person may not practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar." —ORS 9.160(1).

Although by its terms the foregoing language of ORS 9.160 does not distinguish between lawyers and other persons, the statutory prohibition was for many years focused principally on nonlawyers. It had little impact on lawyers duly licensed in other jurisdictions because lawyers traditionally practiced only in the states in which they were licensed. Since the middle of the 20th century, however, as our entire society has become more mobile, there has been a corollary increase in the reach of law practices, driven by the demands of clients whose legal needs are not confined to a single state.

In 2002, after a comprehensive study, the ABA Commission on Multijurisdictional Practice concluded that unlawful practice proscriptions as applied to lawyers should be synchronized with the evolution of client needs and legal practices, and that it was in the public interest to permit a lawyer admitted in one jurisdiction to provide legal services in another jurisdiction in specific situations that serve the interests of clients and the public without creating an unreasonable regulatory risk. ABA Model Rule 5.5 was amended to prohibit a lawyer from establishing an office "or other systematic and continuous presence" for the practice of law in a jurisdiction in which the lawyer is not licensed, while at the same time authorizing multijurisdictional law practice on a temporary basis under certain specific conditions.1 In anticipation of Oregon’s adoption of a rule patterned after Model Rule 5.5, ORS 9.241 was amended in 2003 to permit the Oregon Supreme Court to adopt rules to allow temporary practice in Oregon by attorneys not licensed here, notwithstanding ORS 9.160. When the Oregon Rules of Professional Conduct were adopted effective January 2005, they included a rule virtually identical to Model Rule 5.5.2

Oregon lawyers have welcomed the adoption of Oregon RPC 5.5 as formal recognition that multijurisdictional practice is becoming commonplace. Moreover, as rules like Model Rule 5.5 become the norm around the country, Oregon lawyers will be afforded the same opportunity to practice temporarily in jurisdictions where they are not licensed. Despite some initial concern about opening our borders to lawyers from other jurisdictions,3 temporary practice under RPC 5.5 has not proved to have any apparent negative consequences for Oregon clients, nor has it impacted the OSB’s regulatory functions. At the time of this writing, some 30 jurisdictions have adopted a temporary practice rule patterned after MR 5.5. Based on the absence of any negative impact of RPC 5.5, the Board of Governors has asked the Oregon Supreme Court to adopt it permanently.

RPC 5.5 indisputably allows a lawyer licensed in another state to engage in the temporary practice of law in Oregon without running afoul of the unlawful practice prohibition in ORS 9.160. What remains unclear is the extent to which a lawyer duly licensed in another state but not admitted to practice in Oregon can engage in the practice of law on something other than a temporary basis. Consider the following example:

Lawyer, who is licensed only in New York, decides it is time to make a major life change and moves to Oregon. Not wanting to completely retire from the practice of law, Lawyer retains his affiliation with his New York law firm and establishes an office in his new Oregon home. Lawyer continues to serve his New York firm’s clients on various legal matters; all correspondence is by e-mail through the New York firm’s server; the lawyer is also able to send other correspondence remotely to staff at the New York firm who then print it on the New York firm’s letterhead.

Is Lawyer practicing law "in Oregon?" Is it practicing in Oregon if the matter involves only the law of another jurisdiction? If the client is from another jurisdiction? If Lawyer is only representing New York clients or working on matters involving the law of New York, is he practicing in New York?

I think not. Handling a matter involving New York law or New York residents is not the same as practicing "in" New York. The jurisdiction in which a lawyer practices is determined by where she is physically located when performing the legal services. If the locus of the client or the applicable law determined where one was practicing, there would be no need for rules like RPC 5.5, which are exceptions to the general rule that a lawyer not licensed in a jurisdiction cannot provide legal services there.

Following that analysis, the answer to the question whether our hypothetical Lawyer is practicing law in Oregon is indisputably "yes." All of Lawyer’s legal work is done from an office that is physically located in Oregon, even if some of the technical support comes from or actually takes place in New York. In that case, it would follow that Lawyer is in violation of ORS 9.160 because he is not practicing temporarily in Oregon under the auspices of RPC 5.5, but has established an office and systematic and continuous presence here.

Complicating the issue is whether such a rigid approach to out-of-state lawyer practice is justified by any legitimate public policy. Holders of this view question what interest the state of Oregon has in prohibiting a lawyer duly licensed elsewhere from practicing law in Oregon without being admitted here, under circumstances that do not involve representation of any Oregon client. If there is no risk to Oregon clients of malpractice or misconduct, then what justifies a statutory prohibition that affords them "protection" from the unlicensed practitioner?

It has been suggested that the bar should attempt a legislative "fix" to this perceived problem, not in small part because of what appear to be increasing numbers of out-of-state lawyers who don’t understand that practicing "remotely" from Oregon may be unlawful. Any proposed statutory change would be limited to carving out an exception to ORS 9.160 for lawyers licensed only in other jurisdictions who have established a permanent presence here but who do not represent Oregon clients. It seems that the principal difficulty we would encounter in attempting to draft new statutory language is how to define "Oregon client," although the most obvious element would be that the person not be a resident of or domiciled in Oregon.

And so, our conundrum. Should we attempt a statutory change to allow this kind of practice? If so, what should the statute say? Should lawyers who fall into this exception to unlawful practice be required to register with the bar in some fashion? All of this is only in the most preliminary discussion phase as yet, and we would welcome your input. Please submit any comments or suggestions you have in writing to Sylvia E. Stevens, General Counsel, 5200 S.W. Meadows Road, Lake Oswego, OR 97035, or by e-mail to sstevens@osbar.org.

Sylvia E. Stevens is general counsel of the Oregon State Bar. She can be reached at (503) 620-0222 or (800) 452-8260, ext. 359, or by e-mail at sstevens@osbar.org.

ENDNOTES
1 Prior to its amendment in 2002, ABA Model Rule 5.5 provided only that "[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so." The same prohibitions were contained in former DR 3-101, and were carried over into paragraph (a) of Oregon RPC 5.5.

2 Oregon RPC 5.5 deviates from the Model Rule in its treatment of house counsel. Oregon RPC 5.5 allows temporary practice in Oregon by out-of-state lawyers who are house counsel; an indefinite or permanent presence in Oregon requires admission under Attorney Admission Rule 16.05.

3 The Oregon Supreme Court’s December 2006 order adopting the Oregon Rules of Professional Conduct provided for the automatic repeal of RPC 5.5 on Jan. 1, 2009, unless the court orders otherwise on or before Dec. 31, 2007.

ABOUT THE AUTHOR
Sylvia Stevens is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at sstevens@osbar.org.

© 2007 Sylvia Stevens


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