The Association of Professional Responsibility Lawyers (APRL), comprised of 400+ lawyers and law professors who advise on legal ethics matters, has proposed that the American Bar Association (ABA) amend its model rules to allow lawyers licensed in any U.S. jurisdiction to “practice law and represent willing clients” regardless of geographic location, forum where the services will be provided, or which jurisdiction’s rules will apply.
Per a report by APRL’s Future of Lawyering committee, the proposed change prioritizes a client’s right to choose counsel and removes obstacles created by artificial boundaries.
The current Model Rule 5.5 forbids lawyers from establishing an office or continuous presence in a jurisdiction in which they are not admitted to practice, except as authorized by the ethics rules or other law. (Exceptions apply for in-house lawyers and situations in which out-of-state lawyers practice on temporary basis in tandem with a local attorney.)
The report takes issue with the current rule’s presumption that a lawyer licensed in one jurisdiction cannot sufficiently learn and understand the laws of another jurisdiction to represent a client there independently and competently. It also deems reciprocity rules allowing lawyers to practice in additional states to be an inadequate solution because those rules impose burdens like time-in-practice requirements, different standards for continuing legal education, and long waits for approval. Eleven states don’t offer any reciprocity.
Freeing attorneys from arbitrary geographical constraints, the report says, could address the access-to-justice gap by permitting lawyers to practice in places that have too few or no lawyers and benefit under—as well as unemployed lawyers willing to provide legal services to underserved areas.
APRL’s president emphasized in a letter that clients would still be protected by safeguards, including individual courts’ regulation of lawyers appearing before them, requirements for lawyer competency regardless of location or legal services rendered, and disciplinary jurisdiction both where lawyers are licensed and where they practice. Lawyers would always disclose where they are admitted to practice, and disbarred or suspended attorneys could not practice in a different jurisdiction.
Although the ABA has not commented on the proposed rule change, it did address remote law practice during the pandemic: A December 2020 ABA ethics opinion said that lawyers could practice in their licensed jurisdictions remotely from a state in which they were not licensed, if the jurisdiction of their remote practice had not found doing so to be unlicensed or unauthorized law practice.
The ABA will likely consider the proposed change under its customary process, including public comment from stakeholders. If the ABA ultimately amends its Model Rules of Professional Conduct, individual states could follow suit. According to a 2017 report, the District of Columbia and every state except California, have adopted some form of the ABA’s model professional conduct rules.
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