Supreme Court of Missouri
en banc

In re:

Repeal of subdivision 4-5.5, entitled "Unauthorized Practice of Law," and the comment thereto and subdivision 4-8.5, entitled "Jurisdiction," and the comment thereto of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of a new subdivision 4-5.5, entitled "Unauthorized Practice of Law; Multijurisdictional Practice of Law," and a comment thereto and a new subdivision 4-8.5, entitled "Disciplinary Authority; Choice of Law."



1.  It is ordered that effective January 1, 2006, subdivision 4-5.5 and subdivision 4-8.5 of Rule 4 and the comments thereto be and the same are hereby repealed and a new subdivision 4-5.5 and a new subdivision 4-8.5 and new comments thereto adopted in lieu thereof to read as follows:

4-5.5  UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in  doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
 
(1) except as authorized by this Rule 4 or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted and authorized to practice law in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary 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;

(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 and authorized to practice law and are not services for which the forum requires pro hac vice admission;

(4) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(5) are not within paragraphs (c)(2), (c)(3) or (c)(4) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted and authorized to practice law.

(d) A lawyer admitted in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law and provide legal services in this jurisdiction that are provided to the lawyer’s employer or its organizational affiliates if the lawyer has obtained a limited license pursuant to Rule 8.105 or a general license pursuant to other provisions of Rule 8.

(e) A lawyer shall not practice law in Missouri if the lawyer is subject to Rule 15 and, because of failure to comply with Rule 15, The Missouri Bar has referred the lawyer’s name to the chief disciplinary counsel or the commission on retirement, removal and discipline. 


Comment


[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice.  A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis.  Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person.

[2] The definition of the practice of law is established by law and varies from one jurisdiction to another.  Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.  This Rule 4-5.5 does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.  See Rule 4-5.3.

[3] A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies.  In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

[4] Other than as authorized by law or this Rule 4-5.5, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law.  Presence may be systematic and continuous even if the lawyer is not physically present here.  Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.  See also Rules 4-7.1(a) and 4-7.5(b).  Federal law, including but not limited to international treaties, may require that a lawyer be permitted to practice in this jurisdiction.  Federal law that admits a lawyer to appear in a federal court or other tribunal does not authorize a lawyer to establish an office or other systematic and continuous presence to engage in other aspects of the practice of law in this jurisdiction.  See In re: Page, 257 S.W. 2d 679 (Mo. banc 1953).

[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts.  Paragraph (c) identifies four such circumstances.  The fact that conduct is not so identified does not imply that the conduct is or is not authorized.  This Rule 4-5.5 does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice here under any provision of Rule 8.

[6] There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction and, therefore, may be permissible under paragraph (c).  Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States.  The phrase “admitted and authorized to practice law” in paragraph (c) requires that the lawyer be authorized to practice in a jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.

[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction.  For paragraph (c)(1) to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.

[9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency.  This authority may be granted pursuant to formal rules governing admission pro hac vice.  Under paragraph (c)(2), a lawyer does not violate this Rule 4-5.5 when the lawyer appears before a tribunal or agency pursuant to such authority.  To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule 4-5.5 requires the lawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule 4-5.5 when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice.  Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents.  Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.

[11] When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency.  For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.

[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction and 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.  The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a lawyer who is admitted and authorized to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.  Paragraph (c)(4) applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer.  This paragraph (c)(4) does not authorize the provision of personal legal services on a temporary basis to the employer’s officers or employees.  Lawyers who wish to establish an office or other systematic and continuous presence in this jurisdiction to provide legal services to the lawyer’s employer or its organizational affiliates must be admitted to practice law in this jurisdiction pursuant to Rule 8.105 or other relevant provisions of Rule 8.  See paragraph (d) of this Rule 4-5.5.

[14] Paragraph (c)(5) permits a lawyer admitted in another jurisdiction to provide certain legal services in this jurisdiction on a temporary basis if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3).  These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.

[15] Paragraphs (c)(3) and (c)(5) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted.  A variety of factors evidence such a relationship.  The lawyer’s client may have been previously represented by the lawyer or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted.  The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction.  In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction.  The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each.  In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

[16] Paragraph (d) applies to a lawyer employed exclusively for a corporation, its subsidiaries or affiliates; an association; a business; or a governmental entity if the employer’s lawful business consists of activities other than the practice of law or the provision of legal services.  This paragraph (d) does not authorize the provision of personal legal services to the employer’s officers or employees.  Paragraph (d) does not address federal practice; federal practice is addressed in paragraph (b)(1) of this Rule 4-5.5 and paragraph 4 of this comment.

[17] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction.  See Rule 4-8.5(a).

[18] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraph (c) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction.  For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction.  See Rule 4-1.4(b).

[19] Paragraph (c) does not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions.  Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 4-7.1 to 4-7.5.

4-8.5  DISCIPLINARY AUTHORITY; CHOICE OF LAW

(a) A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.  A lawyer may be subject to the disciplinary authority of both this jurisdiction and other jurisdictions for the same conduct.

(b) In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction.

A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.


Comment


[1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction.  Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purposes of this Rule 4.  See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement.  The fact that the lawyer is subject to the disciplinary authority of this jurisdiction may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.

[2] A lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations.  The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice.  Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction.

[3] Paragraph (b) seeks to resolve such potential conflicts.  Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession).  Accordingly, it takes the approach of: (i) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct; (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions; and (iii) providing protection from discipline for lawyers who act reasonably in the face of uncertainty.

[4] Paragraph (b)(1) provides that as to a lawyer's conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise.  As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct.  In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction.

[5] When a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct occurred.  So long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule 4-8.5.

[6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this rule, identify the same governing ethics rules.  They should take all appropriate steps to see that they do apply the same rule to the same conduct and, in all events, should avoid proceeding against a lawyer on the basis of two inconsistent rules.

[7] The choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.

2.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

3.  It is ordered that this order be published in the South Western Reporter.

Day - to - Day

______________________
RONNIE L. WHITE
Chief Justice