Date of this Version
11 CARDOZO J. CONFLICT RESOL. 29 (2010), pp. 29-80.
As everything else in life has become more global, so has the practice of law. Lawyers commonly have clients and conduct work in states other than the ones in which they reside and are licensed. Transactional lawyers commonly work for clients in different states or put together deals that close in states other than the ones in which they are licensed. Litigators, too, often have clients in other states, participate in court proceedings in other states, and engage in both formal and informal discovery in other states. The work of the litigator poses even more questions if that litigator is engaged in alternative dispute resolution (“ADR”) as opposed to traditional litigation.
Questions involving ADR and the unauthorized practice of law abound because of some fundamental distinctions between ADR and traditional litigation. For example, parties to ADR procedures may purposefully choose to conduct their dispute-resolution procedure in a neutral location, while in traditional litigation the location of the suit must be in a location upon which jurisdiction and venue are established.2 In the case of a neutral-site ADR procedure, questions may arise as to where exactly the lawyers are practicing and whether the principles surrounding the rules relating to the unauthorized practice of law (“UPL”)—such as familiarity with local rules and customs—have any application to the situation. Even assuming the ADR procedure is related to the foreign jurisdiction (i.e., at least one of the parties is located in the foreign jurisdiction or the proceeding involves a claim under the law of the foreign jurisdiction), questions arise as to whether or not a lawyer could even receive temporary admission in another jurisdiction if the ADR procedure is not connected to a trial or administrative proceeding.
In other words, despite the fact that the practice of law has become a national—and international—practice, state law and ethical rules governing lawyers generally limits a lawyer’s practice to the states in which the lawyer is licensed. Although some strides have been made in the recognition of the global practice of law, the statutes and rules regarding the unauthorized practice of law, particularly as they relate to multijurisdictional practice, remain inconsistent. Because of the lingering inconsistencies, lawyers still need to be aware of whether their activities constitute the practice of law, where their activities are taking place, and what, if anything, the lawyers should do if they are practicing law in a jurisdiction in which they are not licensed.
This article attempts to give an overview of the problem facing litigators in their increasingly global practice, as well as the steps that litigators can take to act in compliance with legal and ethical guidelines. Accordingly, this article is divided into two broad areas. First, this article will discuss what activities constitute the practice of law and which jurisdiction’s law should govern, focusing on whether ADR practices constitute the practice of law. Second, if the litigator is engaged in the practice of law, this article considers what actions the litigator should take in order to comply with the applicable ethical rules.
In 2002, the ABA proposed Model Rule of Professional Conduct 5.5 in an attempt to answer many of these questions relating to the unauthorized practice of law, including the questions related to multijurisdictional ADR practice. The proposed Model Rule would largely exempt ADR practice from the realm of the unauthorized practice of law. Nearly five years later, however, the states have not uniformly adopted Model Rule 5.5, particularly as that rule relates to ADR procedures.8 Because Model Rule 5.5 would answer many, if not all, of these questions, these authors recommend that the remaining states consider this rule and adopt the rule, or a similar rule, in order to create a more uniform national practice.