THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE
Opinion 2007-4
(August 2007)

The inquirer, a Pennsylvania lawyer, receives inquiries from prospective clients who live outside Pennsylvania about matters which arose outside Pennsylvania. He has asked whether he may consult with such prospective clients and thereafter provide them with legal advice and representation. According to the inquirer, such matters frequently, but not always, involve questions of federal law. In his inquiry, the inquirer refers to Pennsylvania Rule of Professional Conduct (the "Pennsylvania Rules") 5.5(c) which sets forth the circumstances under which a lawyer admitted in another jurisdiction, but not Pennsylvania, may provide legal services on a temporary basis in Pennsylvania. This also known as "multijurisdictional practice." The inquirer suggests that it would be burdensome to research the applicable rules of professional conduct in the jurisdictions where the prospective clients reside or where the matters arose and has asked the Committee whether he can rely on Pennsylvania Rule 5.5(c) and the American Bar Association’s Model Rule of Professional Conduct 5.5(c), on which the Pennsylvania Rule is based in determining what he may and may not do as regards out of state clients with out of state matters.

Pennsylvania Rule 5.5(a), states "A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, …" Thus, a Pennsylvania-admitted lawyer would violate the Pennsylvania Rules if he or she were to practice law in another jurisdiction in violation of that jurisdiction’s rules of professional conduct or unauthorized practice of law statutes, as interpreted by such jurisdiction's courts. In order for the inquirer to provide the advice and/or representation about which he asks, he must first look at the applicable jurisdiction’s definition of the “practice of law.” As stated in Comment 2 to Pennsylvania Rule 5.5, "The definition of the practice of law is established by law and varies from one jurisdiction to another." The inquirer then must look at the exceptions, if any, to that jurisdiction's proscription on the practice of law in that jurisdiction by a lawyer not admitted in that jurisdiction. While this may be time consuming, there is no other way to make this determination. Reliance on either Pennsylvania's Rule 5.5 or the ABA Model Rule provides neither guidance nor protection for the inquirer.

The inquirer specifically asks if he may provide advice and consultation on matters of federal law, general legal principles and common law to clients who live outside of Pennsylvania. Again, the Committee cites the inquirer to Pennsylvania Rule 5.5(a), which requires that the inquirer research the regulations applicable to the legal profession in the subject jurisdiction, which certainly include that jurisdiction’s multijurisdictional practice rule. To the extent that the inquirer determines that his providing advice and consultation on matters of federal law is permissible under the subject jurisdiction's regulation applicable to the practice of law in that jurisdiction, the Committee recommends that the inquirer advise the client about the limitations on his ability to practice law in that jurisdiction and the possible necessity for the client to retain local counsel, in addition to the inquirer, to advise the client on state and local law issues.

The inquirer also specifically asks if it makes a difference whether he performs legal services in Pennsylvania or in the subject jurisdiction. The answer to this question again depends on the law of that jurisdiction. See, e.g., Comment 4 to ABA Model Rule 5.5, which states that a lawyer may violate Model Rule 5.5(b) (which proscribes a lawyer who is not admitted in a jurisdiction from systematic and continuous presence in that jurisdiction) even if the lawyer is not physically present in the jurisdiction. Most recently the Delaware Supreme Court took action against an attorney no even admitted in Delaware see in re Tonwe, Del., No. 584, 2006, 5/25/07.

Finally, the Committee also cites the inquirer to Pennsylvania Rule 7.1, which requires that the inquirer note on all communications with the out-of-state clients that he is admitted only in Pennsylvania and any other states in which he licensed to practice.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.