Opinion 2003-13
(December 2003)

The inquirer asks whether an attorney not admitted in Pennsylvania may participate in a non-judicial alternative dispute resolution in Pennsylvania.

The inquirer, who is admitted in Pennsylvania, is serving as co-counsel in a confidential ADR proceeding in Philadelphia with an attorney who is admitted to practice in a jurisdiction other than Pennsylvania, and is a member in good standing of the bar of that jurisdiction. Inquirer's co-counsel has represented their mutual client for a number of years in similar matters. The ADR proceeding is the result of a private agreement between Inquirer's client and a number of claimants - it is not court-ordered or connected to any currently pending judicial proceeding.

Pennsylvania Rule of Professional Conduct 5.5, "Unauthorized Practice of Law," currently provides that:

A lawyer shall not

(a) aid a nonlawyer in the unauthorized practice of law; or
(b) practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

Thus, the current Rule 5.5 does not provide guidance on the issue of whether and under what circumstances attorneys admitted in other jurisdictions may practice in Pennsylvania.

However, the ABA has adopted a new Model Rule 5.5, "Unauthorized Practice Of Law; Multijurisdictional Practice Of Law," which provides that

(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 these Rules 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 in another United States jurisdiction, and not disbarred or suspended form 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 to practice and are not services for which the forum requires pro hac vice admission; or
     (4) Are not within paragraphs (c) (2) or (c) (3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
     (1) Are provided to the lawyer's employer or its organizational affiliates and are not services for which the form requires pro hac vice admission; or
     (2) Are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

The Pennsylvania Bar Association's House of Delegates has recommended that the Pennsylvania Supreme Court adopt an amended Rule 5.5 that is consistent with the ABA Model Rule 5.5. The Philadelphia Bar Association has also expressed its support for the revised Rule 5.5. The new Rule 5.5 reflects the current view of what is permissible, and will explicitly allow that which has always been considered ethical. Revised Rule 5.5(c) (3) squarely addresses as permissible the situation presented by inquirer.

It is the opinion of this committee that the inquirer's co-counsel may participate in the ADR proceeding as described by the inquirer, assuming the inquirer is requesting an opinion regarding the participation by co-counsel in a single ADR proceeding. The participation by co-counsel in multiple ADR proceedings could constitute the unauthorized practice of law even under new Rule 5.5

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.