RESOLUTION OF THE PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS Concerning Proposed Modification To Model Rule 5.5
WHEREAS, the practice of law increasingly calls for the crossing of state lines; and
WHEREAS, most state rules defining the unauthorized practice of law have not yet been adapted to the interstate nature of the practice of law; and
WHEREAS, advances in technology, together with national standards for the accreditation of law schools by the American Bar Association, the development of the Multistate Bar Examination and Multistate Professional Responsibility Examination and the work of the National Conference of State Bar Examiners all help assure that lawyers admitted to practice in one state are also competent to practice law in other states when the need arises in connection with representation of a client in a particular transaction, lawsuit or other matter; and
WHEREAS, attorneys who engage in multijurisdictional practice should be subject to the disciplinary process in each state in which they engage in the practice of law; and
WHEREAS, the American Bar Association has established a Commission to examine the issues raised by multijurisdictional practice and to receive recommendations about possible revision of Model Rule 5.5 of the Rules of Professional Conduct; and
WHEREAS, the Philadelphia Bar Association believes that modification to Model Rule 5.5 is in order, but should not incorporate any changes with respect to non-lawyers or any other persons who are not currently licensed to practice law in any jurisdiction.
NOW, THEREFORE, BE IT RESOLVED, that this Association supports adoption of a revised Model Rule 5.5 as follows:
The Supreme Court of [this state] in the exercise of its exclusive jurisdiction to regulate the practice of law within this state, adopts the following rule to govern the practice of law in this jurisdiction by a lawyer licensed to practice law in another United States jurisdiction.
RULE 5.5. Unauthorized Practice of Law
A. A lawyer licensed to practice law in another United States jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law when the lawyer represents a client in this jurisdiction, provided the lawyer's services
(1) are undertaken on an incidental and intermittent basis and in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the representation; or,
(2) are services that may be performed by a person who is not a lawyer without a license or other authorization from a state or local governmental body; or,
(3) are performed in, or are reasonably related to, a pending or potential proceeding held or to be held before a tribunal or administrative agency in this jurisdiction, provided the lawyer is authorized by law, or court or agency order, to appear in such proceeding or reasonably expects to be so authorized; or,
(4) are performed on an incidental and intermittent basis and are in, or reasonably related to, a pending or potential non-judicial arbitration, mediation, or other alternate dispute resolution proceeding held or to be held in this or another jurisdiction; or,
(5) are not within subparagraphs (3) or (4), but are performed on an incidental and intermittent basis and
(i) are performed for a client who resides or has a principal office in a jurisdiction in which the lawyer is authorized to practice; or,
(ii) arise out of, or are reasonably related to, a matter that has a substantial connection to a jurisdiction in which the lawyer is admitted to practice; or
(6) are performed on an incidental and intermittent basis and are governed primarily by federal law, international law, the law of a foreign nation, or the law of a jurisdiction in which the lawyer is admitted to practice.
(7) are delivered from outside the jurisdiction via telephone, written, video and/or electronic communication (e.g. e-mail, the Internet, or other substantially similar technology) to a client with whom the lawyer has an existing and legally recognizable attorney-client relationship in another United States jurisdiction.
B. A lawyer licensed to practice law in another United States jurisdiction but not in this jurisdiction does not engage in the unauthorized practice of law in this jurisdiction when the lawyer renders services in this jurisdiction pursuant to authority granted by federal law, or the law or a court rule of this jurisdiction.
C. A lawyer who seeks the benefit of this rule must be (1) a member of the Bar in good standing in all courts and jurisdictions to which the lawyer has been admitted and (2) licensed to practice law in a United States jurisdiction that has adopted a rule substantially similar to this rule, such similarity to be determined by the Supreme Court of this state or its designee.
D. A lawyer not licensed to practice law in this jurisdiction, but who is licensed to practice law in any other United States jurisdiction, and who appears in any court of record or before any administrative tribunal in this jurisdiction also must comply with all the applicable procedural and substantive rules of the tribunal in this jurisdiction.
E. Except as authorized by this rule or law, a lawyer who is admitted to practice in another jurisdiction but is not admitted to practice in this jurisdiction:
(1) shall not establish an office or other permanent presence for the practice of law in this jurisdiction without contemporaneously initiating procedures to gain admission into the Bar of this jurisdiction by application and waiver if able to do so, or by registering to take the Bar exam within one year of establishing such an office or other permanent presence;
(2) shall not, pending admission into the Bar of this jurisdiction, practice law without the direct supervision of an attorney admitted to practice in this jurisdiction operating out of the same law practice or business entity for such permanent practice; and
(3) shall not represent or hold out to the public that he/she is admitted to practice law in this jurisdiction.
BE IT FURTHER RESOLVED, that the Philadelphia Bar Association supports efforts by the National Conference of Boards of Law Examiners, and by this Commonwealth's State Board of Law Examiners to promote and facilitate reciprocal admission to practice among all fifty states and the District of Columbia;
BE IT FURTHER RESOLVED, that the Delegates from the Philadelphia Bar Association to the American Bar Association's House of Delegates be requested to support strongly efforts to have the above amendments to Rule 5.5 adopted as the position of the American Bar Association and authorizes the Chancellor to cause the Association to take appropriate action in support of this Resolution; and
BE IT FURTHER RESOLVED, that the Philadelphia Bar Association supports the adoption of a Model Rule on Pro Hac Vice and efforts to recommend its adoption by state supreme courts in order to eliminate unduly restrictive provisions that may impede the ability of attorneys to participate in pending litigation outside the states where licensed and to facilitate consistency of the pro hoc vice procedure among the states.