Wisconsin Lawyer
Vol. 81, No. 7, July 2008

Ethics

Border Hopping: New Rules on Multijurisdictional Practices

by Dean R. Dietrich

Question

I see situations in which a lawyer licensed in another state is providing legal services to someone in Wisconsin. Isn't that a violation of the Rules of Professional Conduct?

Answer

A lawyer who is not licensed in Wisconsin is engaged in the unauthorized practice of law if she or he provides legal services to a client in Wisconsin. Wisconsin Supreme Court Rule 20:5.5 states that it is a violation of the rules to practice law in Wisconsin if the lawyer is not admitted to practice in Wisconsin. Enforcement of this rule has been sporadic at best, and there are significant questions regarding the authority of the Wisconsin Supreme Court to impose discipline on a lawyer who is licensed in another state and providing legal services to someone in Wisconsin. On the other hand, providing legal services to a client in another state or giving advice about the laws of another state has become commonplace today. Many lawyers are asked to represent corporate or individual clients in legal matters throughout the United States or even in foreign countries.

Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

The Wisconsin Supreme Court has taken steps recently to address the issue of multijurisdictional practice. In a hearing on Jan. 9, 2008, the supreme court gave preliminary approval to modify SCR 20:5.5 to allow non-Wisconsin licensed lawyers to provide legal services in Wisconsin on an occasional basis and to provide a safe harbor for a Wisconsin lawyer who provides legal services on behalf of a client in another state under the same conditions. Based on further discussions by the court, SCR 20:5.5(a) has been tentatively modified from the current rule to read as follows:

(a) A lawyer shall not:

(1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction except that a lawyer admitted to practice in Wisconsin does not violate this Rule by conduct in another jurisdiction that is permitted in Wisconsin under SCR 20:5.5(c) and (d) for lawyers not admitted in Wisconsin; or

(2) assist another in practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

The important changes to the rule are found in a new subsection (c), which provides as follows:

(c) Except as authorized by this Rule, a lawyer who is not admitted to practice in this jurisdiction but who is admitted to practice in another jurisdiction of the United States and not disbarred or suspended from practice in any jurisdiction for disciplinary or medical incapacity purposes, may not provide legal services in this jurisdiction except when providing services on an occasional 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; or

(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.

Under these conditions, a lawyer who is not licensed to practice law in Wisconsin can provide legal services on an occasional basis in Wisconsin provided the services fall under one of the four exceptions described in the rule. Paragraph (c)(4) is very general in nature and provides a safe harbor for an out-of-state lawyer to provide services on behalf of a client in Wisconsin, if such services are reasonably related to the lawyer's practice in the state where the lawyer is licensed. Again, Wisconsin lawyers are allowed to provide legal services on an occasional basis in another state under the same conditions and not be subject to discipline from the Wisconsin Office of Lawyer Regulation.

Some requirements apply to any lawyer who is not licensed in Wisconsin but decides to provide legal services to or for someone in this state. Under SCR 20:5.5(b) and (e), the nonlicensed lawyer is subject to all the following requirements:

• The lawyer may not establish an office in the state for providing legal services.
• The lawyer may not maintain a systematic and continuous presence in the state for providing legal services.
• The lawyer may not hold herself out to the public or represent to others that the lawyer is admitted to practice in Wisconsin.
• The lawyer consents to the appointment of the Wisconsin Supreme Court clerk as agent for service of process for all actions against the lawyer or the lawyer's law firm arising out of the providing of legal services in this state.

These protections are consistent with the requirements concerning multijurisdictional practice in ABA Model Rule 5.5.

Special provisions relate to lawyers who engage in a federal law practice or who provide legal services to a sole employer, such as in-house counsel. SCR 20:5.5(d) will likely read as follows:

(d) A lawyer admitted to practice in another United States jurisdiction or in a foreign jurisdiction, who is not disbarred or suspended from practice in any jurisdiction for disciplinary or medical incapacity purposes, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates after compliance with SCR 10.03(4)(g) 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.

The Wisconsin Supreme Court has tentatively approved the above changes to SCR 20:5.5, although an effective date has not yet been determined. It is anticipated that the court will take final action and establish an effective date for these rule changes in the near future.

Wisconsin Lawyer