It’s cold outside, baby! At least it is here in northeast Ohio. If you live in the frozen north, you might be lucky enough to have a winter home in a more weather-friendly state where you spend part of your time. What if you want to do legal work from there while enjoying the sunshine – are there any ethics issues? The answer is “Yes.” There are things you need to watch out for while wearing those sunglasses.
Assuming that you don’t have a license to practice in that sunny state, the issue, of course, is the unauthorized practice of law (UPL), which is proscribed by Model Rule 5.5(a). Exceeding the jurisdictional bounds of your license is nothing to fool around with. We’ve blogged about a Colorado lawyer who was disciplined in 2016 by the Minnesota Supreme Court for helping his Minnesota in-laws in a debt collection matter in a Minnesota court. The court reprimanded the Colorado lawyer, even though he was only negotiating over the phone with opposing counsel, and never came to Minnesota. A flawed decision, as we pointed out — but it illustrates the border-protecting outlook that can sometimes characterize state bar regulators.
Of course, if you are going to be spending time in your winter get-away every year, you can consider being admitted in the other state on motion, without examination — aka “waiving in.” Many states have a provision for that, if you have some years of practice under your belt.
The problem is that some of the states with the best weather also try to protect their resident lawyers from snow-bird competition — we’re looking at you, Florida, Nevada, California and Louisiana. They are among the jurisdictions that the ABA’s most recent listing shows as lacking any form of admission by motion, requiring anyone seeking admission to take the state bar exam.
For other jurisdictions, there can be paperwork and fees involved in waiving in, along with varying requirements for the number of years you must have practiced in order to be eligible.
What if you don’t want to undergo the waive-in process, or your temporary home is located in one of the states that doesn’t offer it?
Model Rule 5.5(c), adopted in some form in 47 states, creates four safe harbors for lawyers to “provide legal services on a temporary basis” in a jurisdiction where they are not admitted. They are: (1) associating with local counsel who actively participates in the matter; (2) being admitted pro hac vice in litigation; (3) participating in arbitration or mediation; and (4) where the legal services in the other state “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”
It’s that fourth factor that can be of help to a snow-bird lawyer, potentially covering work where you are not licensed. A 2016 article by Ron Minkoff for the ABA’s Professional Lawyer notes that under that safe harbor, “if all you do in your second home is work for your … home state clients, applying only home state law, and do not attempt to solicit local clients, it is dubious that state disciplinary authorities [where your temporary home is located] will care.”
That’s good advice. But some caveats: “temporary practice” means temporary. Minkoff cautions that regulators “will not be amused” if you hang out a shingle on your beach-side mailbox or list yourself in the local phone book — let alone rent out space in a storefront. All those are indicia of more-than-temporary intent.
Also, broad though it may be, “arising out of” or being “reasonably related to” your practice in your home state is still subject to limits. For instance, in the Minnesota case mentioned above, the lawyer tried to argue that his work for his in-laws related to his home-turf practice, but the court rejected the notion.
Comment  to Rule 5.5(c) lists some of the “varied” factors pointing to that “reasonable relationship,” among them: the client may be a resident of your home state or have significant contacts there; the matter may have a significant connection to your home jurisdiction; the client may be drawing on your expertise in matters involving a “particular body of federal, nationally-uniform, foreign or international law.” In the Minnesota case, there weren’t any factors pointing to a reasonable relationship with the Colorado lawyer’s home state, at least according to the court.
Keep warm and carry on
As always, local rules count here, and you should check those of the hopefully-warmer state where you winter — those are the ones that will apply to your border-crossing activities, not the rules in your state of admission. But if you are one of those lucky snow-birds — well, I envy you.