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Opinion #189: Unauthorized Practice of Law in Maine by Admittees of Foreign Jurisdiction
Issued by the Professional Ethics Commission
Date Issued: November 15, 2005
Question
The Professional Ethics Commission has been asked by Bar Counsel for an opinion concerning whether two scenarios violate Maine Bar Rule 3.2(a) prohibiting the unauthorized practice of law.[1]
Scenario One:
Attorney A is admitted in State X. A seeks admission to the Maine bar. A described himself on his most recent application for admission to the Maine bar as "President and General Counsel of the A Group." A has a website for the "A Group" that describes it as follows: "The A Group is a Maine based boutique litigation law firm" with offices in several states in the northeast region. Over 20 different practice areas are listed as the firm's areas of concentration. These are not limited to federal practice areas. The website provides a primary address for the A Group in Maine and its only telephone number is a Maine number. The website contains an identifiable picture of a Maine coastal scene. The website also contains a brief personal description of A in which A explains that after practicing elsewhere, he returned to reside with his family in his home state of Maine. A describes his educational and employment background, states that he is admitted in State X, and describes himself as a member of the state bar associations in Maine and State X. His description is silent about his bar admission status in Maine. Only one other attorney is described as being a member of the firm, in an "of counsel" role. That other attorney is described as being admitted in two northeastern states? jurisdictions. There is nothing on the website that in any way suggests that the other attorney is admitted in Maine.
Scenario Two:
Attorney B is admitted to practice law only in State Z. For the last five years, B has resided in Maine and been an equity member of a law firm organized as a Maine LLC, having law offices in two locations in Maine. There are a total of 20 individuals whose names appear on the law firm letterhead, some equity, some non-equity members. Beside B's name on that firm letterhead, there appears a reference and a note that B is admitted only in State Z.
B provides legal services to clients of the firm for an hourly fee. B also performs managerial and administrative duties at the firm, including supervision of lawyer associates and non-lawyer employees. B himself, an equity member, is not subject to any other lawyer's supervision.
B's law practice is limited to legal services concerning international and domestic energy and utility law. B typically has only one or two large corporate clients. B is considering an offer from a multi-national company incorporated in Maine with subsidiaries in several locations in the United States and Canada to serve as "Outside General Counsel and Chief Legal Officer." B has disclosed to that company that he is licensed only in State Z and has further explained that consequently there are limitations upon the representation he can offer in Maine and other jurisdictions. B has informed the company that it will be necessary to employ licensed attorneys in Maine and other jurisdictions to complement his services when the company requires legal advice about the laws of these jurisdictions. The company has consented to the limitations of the engagement as outlined in writing by B to the company. B perceives the company as a sophisticated consumer of legal services that has the wherewithal to obtain independent review of the proposed engagement by other counsel. B does not believe that the proposed engagement could cause harm to the client, the legal profession, or any member of the public.
Discussion
First, we note that the Maine Bar Rules govern any attorney who practices law in Maine, regardless of whether that attorney is admitted to practice law in Maine. Rule 1(a) states:
These rules govern the practice of law by attorneys within this State and the conduct of attorneys with respect to their professional activities and as officers of the Court. Any attorney admitted to, or engaging in, the practice of law in this State shall be subject to the Court?s supervision and disciplinary jurisdiction and the provisions of these rules, including Maine Bar Rule 1(b). (Emphasis added.)
Maine Bar Rule 1(b) is the ?Choice of Law? provision of the Bar Rules, which deals specifically with conduct before a tribunal and other conduct where the lawyer is licensed to practice either only in Maine or in both Maine and another jurisdiction. The two fact situations that have been presented for consideration by Bar Counsel do not fit into either of these choice of law categories because they involve ?other conduct? of attorneys who are not admitted to practice in Maine. By default, however, Maine ?s Code of Professional Responsibility governs the conduct of these two attorneys to the extent that they are practicing law in Maine. If they are practicing law in Maine without the authority to do so, they are in violation of Maine Bar Rule 3.2(a).
Second, Rule 3.2(a) does not actually delineate the parameters of the unauthorized practice of law. It merely states that ?[a] lawyer shall not practice law in a jurisdiction where to do so would be in violation of law or court rule.? In construing Rule 3.2(a), we must opine on what it means to ?practice law in a jurisdiction where to do so would be in violation of law or court rule.? In other words, we must resolve the parameters of permissible multijurisdictional practice and impermissible unauthorized practice of law.
Neither of the two scenarios leaves any doubt as to whether the attorney involved is engaged in the practice of law.[2] The statute which renders the unauthorized practice of law a Class E crime, 4 M.R.S.A. §807,[3] prohibits persons who are not admitted in Maine from either practicing law or professing to practice law within the State and therefore potentially reaches both Attorneys A and B regardless of whether they actually obtained any clients within the State. The Law Court, in interpreting this statute, has made it clear that the term ?unauthorized practice of law? applies even to persons who merely hold themselves out to practice law, regardless of whether they actively have a client. See Board of Overseers of the Bar v. MacKerron, 581 A.2d 424, 425 ( Me. 1990) (use of attorney letterhead is sufficient to establish unauthorized practice of law).
Likewise, neither scenario leaves any doubt about whether the attorney is practicing law ?in [the] jurisdiction? of Maine. Given the extra-jurisdictional effects of modern legal practice, this concept can be viewed in a number of different ways. Questions can arise whether presence through the Internet, association with referral attorneys and other scenarios constitute practice in Maine. We need not grapple with issues created by these kinds of situations, however, because the two scenarios before us involve relatively clear circumstances where the attorneys have, or at a minimum suggest they have, a physical presence in Maine rendering legal services in Maine to Maine clients.
In assessing what it means to practice law in a jurisdiction, particularly without being admitted in that jurisdiction, we find the ABA Model Rules of Professional Conduct, specifically Rule 5.5, and the Restatement (Third) of the Law Governing Lawyers § 3, to be helpful. These sources aid us in identifying some of the critical factors relevant to determining whether a lawyer is practicing law in a particular jurisdiction in an unauthorized way. The factors we discern as important include:
Whether the attorney has established an office in the jurisdiction;
Whether the attorney has established some other systematic and continuous presence in the jurisdiction;
Whether the attorney holds out to the public or otherwise represents that the attorney is admitted to practice law in the jurisdiction;
Whether the attorney is providing legal services in the jurisdiction on more than a temporary basis in connection with some matter or proceeding for which the attorney is properly admitted to practice either by another jurisdiction or a tribunal; and
Whether the attorney is providing services that fall within some exception to the usual unauthorized practice of law rules, such as the ?federal practice? exception.
Indeed, we find that ABA Model Rule 5.5, as a whole, quite accurately reflects historical and widely accepted notions of the limits of multijurisdictional practice and the parameters of the unauthorized practice of law.[4]
Utilizing these factors, we conclude that the mere fact that an attorney, not admitted in Maine, is working in Maine does not automatically mean that the attorney is engaged in the unauthorized practice of law. For example, an out-of-state lawyer who has a vacation home in Maine might bring work to Maine to complete while on vacation. Where the lawyer?s practice is located in another state and where the lawyer is working on office matters from afar, we would conclude that the lawyer is not engaged in the unauthorized practice of law. We would reach the same conclusion with respect to a lawyer who lived in Maine and worked out of his or her home for the benefit of a law firm and clients located in some other jurisdiction. In neither case has the lawyer established a professional office in Maine, established some other systematic and continuous presence in Maine, held himself or herself out to the public as admitted in Maine, or even provided legal services in Maine where the lawyer is working for the benefit of a non-Maine client on a matter focused in a jurisdiction other than Maine. As another example, an out-of-state lawyer who is a member of a law firm with offices in a number of states, including Maine , may occasionally work in the Maine office providing legal services to Maine clients in association with other lawyers in the firm who are admitted to practice in Maine. When this is done on a temporary basis, we would conclude that the lawyer is not engaged in the unauthorized practice of law.[5]
Opinion
We now turn to the two scenarios posed by Bar Counsel.
Scenario One
We find this scenario relatively easy to assess. In analyzing this situation, that of Attorney A licensed only in State X, we evaluate A?s practice in light of the factors outlined above. First, A?s office is located in Maine (?a Maine based boutique litigation law firm?) with a primary mailing address in Maine and a telephone number in Maine . Second, A through his website has clearly established a systematic and continuous presence in Maine. Third, A holds himself out as being willing and available to provide legal services in his ?home state of Maine,? which taken together with his reference to being a member of the Maine State Bar Association, suggests that he is admitted to practice in Maine.[6]
These factors, in and of themselves, make it clear to us that Attorney A is engaged in the unauthorized practice of law in Maine, by at least professing to practice law within Maine without having been admitted to the Maine Bar.[7] Attorney A?s conduct therefore violates Maine Bar Rule 3.2(a).
Scenario Two
The second fact scenario requires greater analysis. As presented by Bar Counsel, the facts involve a partner in a Maine-based firm who limits his practice to international and national regulatory work. This potentially brings into question the application of the ?federal law? exception to unauthorized practice.
Once again using the factors identified above, we first note that Attorney B?s law office is physically located in Maine and apparently nowhere else. Accordingly, he has established an office in Maine, indeed only in Maine, and his law firm likewise has an office only in Maine. Second, B has clearly established a systematic and continuous presence in Maine. He appears to practice in Maine full time, he is an equity member of a Maine law firm, and he appears to use his locus in Maine to appeal to potential clients. Third, concerning whether Attorney B holds himself out to the public or otherwise represents that he is admitted to practice law in Maine , the firm letterhead states that he is only admitted in State Z. Accordingly, B does not appear to hold himself out to the public as admitted in Maine.[8] Fourth, it appears likely that B is performing legal services in Maine for Maine clients on a regular rather than a temporary basis, although we recognize the possibility that a majority of his legal services may be performed in connection with a licensing issue or some other process in one or more other jurisdictions.
In our view, the third factor produces little weight against the force of factors one, two and four.[9] Lawyer B has established an office and a systematic and continuous presence in Maine through which he provides legal services. Even though his practice is apparently self-limited to legal services concerning ?international and domestic energy and utility law,? he does so from a law firm having an office only in Maine. There does not appear to be any restriction against his working for Maine clients. The scenario states specifically that he provides ?legal services to clients of the firm? and also indicates that he is considering an offer from a multi-national company incorporated in Maine. This suggests that Lawyer B is promoting his ongoing presence in Maine.
Giving due consideration to these four factors, it is our opinion that Attorney B is clearly practicing law in Maine without being admitted in Maine, and that this is not negated by the fact that the firm letterhead states he is only admitted in State Z. In order to resolve whether B is engaged in the unauthorized practice of law, however, we must also consider factor 5 and the ?federal practice? exception on which we assume B relies.
B?s practice arrangement appears to presume that a lawyer, not licensed in Maine , may practice law in Maine so long as that lawyer?s practice is limited to international, federal or multi-state issues. We believe such a presumption, taken alone, goes too far. We receive guidance, once again, from the Restatement and the ABA Model Rules. The Restatement recognizes an explicit exception to the unauthorized practice rule where the lawyer provides legal services ?before a tribunal or administrative agency of another jurisdiction or the federal government in compliance with requirements for temporary or regular admission to practice before that tribunal or agency.? The Model Rules permit ?services that the lawyer is authorized to provide by federal law . . . .? ABA Model Rule 5.5(d)(2). Accordingly, the otherwise unauthorized practice is permissible if it occurs ?before? a tribunal or agency in compliance with its rules or if authorized by federal law. Comment 18 to Model Rule 5.5 makes it clear, however, that such authorization to practice will usually be derived from statute, court rule, regulation or judicial precedent.
We do not have sufficient facts to determine whether B?s practice is limited to matters before federal or international tribunals or whether his authorization to practice is otherwise derived from any statute, court rule, regulation or judicial precedent. Accordingly, we cannot opine whether his practice squarely falls within any ?federal law? exception to the unauthorized practice. We have concerns, however, as to whether B is appropriately limiting his practice, i.e., whether he is in a position where his legal services occasionally drift into other areas. We add that we do not believe Lawyer B insulates himself from unauthorized practice concerns by employing ?licensed attorneys in Maine and other jurisdictions to complement his services when [his clients] require legal advice about the laws of other jurisdictions.? The real question is whether despite this, B?s practice extends outside the strict boundaries of any ?federal law? exception to unauthorized practice. If so, then B is engaging in the unauthorized practice of law and is in violation of Maine Bar Rule 3.2(a)(1). Moreover, any lawyers who aid B in this regard stand in violation of Maine Bar Rule 3.2(a)(2).
Regarding B?s engaging, as a client, the multi-national corporation incorporated in Maine., the same factors and analysis stated above apply. We see no discernable difference between B?s current practice and B?s taking on representation of the multi-national corporation as outside general counsel.[10]
Footnotes
[1] M. Bar R. 3.2(a)(1) states that ?[a] lawyer shall not practice law in a jurisdiction where to do so would be in violation of law or court rule. M. Bar R. 3.2(a)(2) prohibits a lawyer from aiding any person, association or corporation in the unauthorized practice of law.
[2] The Law Court has had occasion to define the practice of law in Board of Overseers of the Bar v. Mangan, 2001 ME 7, ¶¶ 13-14, 763 A.2d 1189, 1193 (2001), where it stated:
The term "practice of law" is a "'term of art connoting much more than merely working with legally-related matters.?" Attorney Grievance Commission of Maryland v. Shaw, 354 Md. 636, 732 A.2d 876, 882 (1999) (quoting In re Application of Mark W., 303 Md. 1, 491 A.2d 576, 585 (1985)). "The focus of the inquiry is, in fact, 'whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.'" Id. (quoting In re Discipio, 163 Ill.2d 515, 206 Ill. Dec. 654, 645 N.E.2d 906, 910 (1994)). Even where "'trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law.'" Shaw, 732 A.2d at 883 (quoting Lukas v. Bar Ass'n of Montgomery County, 35 Md. App. 442, 448, 371 A.2d 669, 673, cert. denied, 280 Md. 733 (1977)).
In Shaw, 354 Md. 636, 732 A.2d 876, 882 (1999), the court noted that the practice of law includes "'utilizing legal education, training, and experience [to apply] the special analysis of the profession to a client's problem.'" (quoting Kennedy v. Bar Ass'n of Montgomery County, Inc., 316 Md. 646, 662, 561 A.2d 200, 208 (1989)). The Shaw court further noted that "the Hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client's legal affairs." Shaw, 732 A.2d at 883 (quoting In re Application of R.G.S., 312 Md. 626, 632, 541 A.2d 977, 980 (1988)).
[3] 4 M.R.S.A. § 807 states in subsection 1: ?No person may practice law or profess to practice law within the State or before its courts, or demand or receive any remuneration for those services rendered in this State, unless that person has been admitted to the bar of this State and has complied with section 806-A, or unless that person has been admitted to try cases in the courts of this State under section 802.
[4] Model Rule 5.5, in its entirety, states:
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
(a) 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.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.
[5] We do not opine at this time on other possible situations involving law firms with offices in several jurisdictions, including Maine, such as the lawyer who, while not admitted in Maine, has a more continuous presence in Maine. A resolution of the issues presented by the multitude of other practice situations that one might envision is not necessary for our opinion on the two scenarios presented by Bar Counsel.
[6] We also have concern about Attorney A?s potential violation of Rule 3.9 relating to false, misleading or deceptive advertising. As stated above, the statements by Attorney A about his connection with Maine, particularly his self-description as a member of the State Bar Association in Maine, leave the impression that he is licensed to practice in Maine. Although lawyers not licensed in Maine may become members of the Maine State Bar Association, this fact is neither well known to the public nor made clear by A on his website. Our conclusion is that this advertising contains material misrepresentations of fact as well as omissions of material facts that are necessary to make his statements, in the light of all of the circumstances, not misleading.
[7] Attorney A?s superfluous reference to having a second lawyer in an ?of counsel? relationship with his firm, which lawyer is admitted in two northeastern states? jurisdictions, neither of which appears to be Maine, is without consequence to our opinion.
[8] We render no opinion at this time on whether this reference, ?admitted only in State Z,? adequately comports with Maine Bar Rule 3.9(e), which states:
A multi-jurisdictional partnership shall disclose, in all public communications containing the names of affiliated lawyers, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.
The obvious issue is whether this adequately discloses to the average consumer of legal services the jurisdictional limitations on Attorney B, particularly where B maintains a systematic and continuous presence in Maine.
[9] We add that factors one, two and four are very significant when one considers the purposes of local licensure. Besides testing for competence in substantive Maine law, local licensure fulfills at least two other purposes: to insure that the applicant meets minimal standards of character and fitness and to provide the Board of Overseers of the Bar with unfettered oversight over those practicing law within the State. The ultimate goal is the protection of the public, the courts, the legal system and the profession. This cannot be accomplished when an attorney has an office or other ?systematic and continuous? presence in the state and may be altogether unknown to the authority charged with these protective duties.
[10] We differentiate Attorney B?s prospective employment as ?outside general counsel? from employment of a lawyer as in-house counsel. The case of the in-house lawyer involves considerations that are of no consequence to Attorney B as an outside counsel.
