Lawyers admitted in a U.S. jurisdiction should be able to practice law in any state, according to a recommendation from a group of 400 lawyers and law professors who advise lawyers on ethics matters.
The Association of Professional Responsibility Lawyers (APRL) says that ABA Model Rule 5.5, which was adopted in 2002 to prohibit lawyers from practicing in a jurisdiction where they aren’t admitted, isn’t responsive to the way lawyers practice law today, specifically with respect to expanding their practice beyond state and national borders, which we increasingly saw during the pandemic.
APRL submitted proposed revisions to Model Rule 5.5 and an accompanying report to ABA President Reginald M. Turner last month.
The revisions, APRL says, would “better reflect the way lawyers practice in the 21st Century” by allowing attorneys to represent willing clients without regard to geographic location, the forum where the services are to be provided, or which jurisdiction’s rules apply at a given moment in time.
The rule would still recognize ethics and competency rules and preserve judicial authority in each state to regulate who appears in state courts.
The proposed revisions are the result of a study on multijurisdictional practice and the unauthorized practice of law from APRL’s Future of Lawyering Committee. Jayne Reardon, former Executive Director of the Commission on Professionalism, serves on the committee.
Drivers’ licensing and the practice of law
The state-based licensing practice for lawyers originated more than two centuries ago when the need for legal services was more locally based.
However, today attorneys regularly participate in video calls and send emails to parties in other jurisdictions. In addition, the advent of online research has made it easier for lawyers to establish competency in local rules and ordinances, APRL says.
The proposed regulatory model can be likened to the way that driver’s licensing in the U.S. works, the report says. While each jurisdiction implements its own rule for licensing drivers, licenses are recognized across jurisdictions and it’s up to drivers to stay informed on the differing laws.
In this case, lawyers would be required to disclose the jurisdictions they’re licensed in, which APRL says will enhance public protection. Moreover, the judicial branch would still have the authority to regulate who appears before them in court and lawyers would be held responsible for disciplinary issues in the relevant jurisdiction.
Addressing the issue of ‘border lawyers’
There is no disputing that the U.S. is facing an access to justice crisis, with low-income Americans not receiving any or enough legal help for 92% of their civil legal problems, according to the Legal Services Corporation’s The Justice Gap report. And more than one-half (53%) of low-income Americans doubt they could find an attorney they could afford.
These challenges may be more significant in rural areas, where established lawyers are retiring and new ones aren’t moving in to replace them. The current ethical rules, however, prohibit clients from hiring attorneys who may be nearby but in a different state or jurisdiction. This structure also presents challenges for unemployed or underemployed attorneys, who may struggle to pay bar admissions fees or satisfy CLE requirements in multiple states.
The revised Model Rule 5.5 would provide more choice for clients when selecting legal representation, noting that “protecting clients from incompetent lawyering does not require artificial boundaries.”
If there were more flexibility for “border” lawyers to provide legal services to clients who are geographically close, the cost of legal services would be reduced, availability and access would be increased, and lawyers could be more gainfully employed, the report says.
What’s happening in Illinois and nationally
Modernizing regulations around the practice of law has been a hot topic of conversation for years and has gained significant steam thanks to the changes implemented during the pandemic.
In December 2020, the ABA issued Formal Opinion 495, stating that lawyers may practice law in jurisdictions where they’re licensed while physically present in another jurisdiction as long as it’s not considered the unlicensed or unauthorized practice of law in the local jurisdiction and they don’t hold themselves out as being licensed to practice in the jurisdiction.
In February 2022, the Florida Supreme Court took it further, clarifying that an out-of-state lawyer practicing remotely in the state did not constitute the unauthorized practice of law.
For purposes of this rule, a lawyer licensed in another United States jurisdiction does not have a regular presence in Florida for the practice of law when the lawyer works remotely while physically located in Florida for an extended period of time if the lawyer works exclusively on non-Florida matters, and neither the lawyer nor any firm employing the lawyer holds out to the public as having a Florida presence.
In Illinois, a Chicago Bar Association and Chicago Bar Foundation task force submitted to the Illinois Supreme Court 11 recommendations for certain regulatory reforms in the state aimed at creating a more accessible and sustainable legal profession.
Internal Supreme Court Committees are currently providing further input on most of the recommendations and are developing plans for execution.
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