UPL Bullets - Considering Recent Opinions

In the past week or so, I’ve come across a surprising amount of opinions that deal with unauthorized practice of law issues.

• In re Jordan, 2009 WL 1385932, No. 04-OB-0542 (La. May 5, 2009):  the Louisiana Supreme Court denied an applicant admission to the Bar because she lacked “good moral character”. The Court found clear and convincing evidence that (1) she engaged in the unauthorized practice of law by negotiating personal injury settlements on behalf of the lawyer for whom she worked, and (2) she entered into an impermissible fee sharing arrangement with the lawyer.  The companion case disbarring the lawyer is In re Garrett, 08-2513 (La. 5/5/09).
• Carlson v. Workforce Safety & Insurance, 2009 WL 1362816, No. 20080250, N.D. May 18, 2009): the North Dakota Supreme court voided an agency’s decision on appeal because the lawyers who had successfully persuaded the agency to reverse a workers’ compensation award engaged in the unauthorized practice of law — they were from Cleveland and not licensed in North Dakota. The lawyers did not fit any of the safe harbor exceptions set out in North Dakota RPC 5.5:  the motion and briefs were too thorough to qualify either as the type of work that nonlaywers may perform or as the type of preparatory effort permitted when lawyers are pursuing pro hac vice admission.
• Lexington Law Firm v. South Carolina Dep’t of Consumer Affairs, 2009 WL 1312603, No. 26648 (S.C. May 12, 2009): Utah law firm not exempted as “attorneys at law” under South Carolina law requiring licensing of credit counseling organizations unless they are licensed attorneys. The Court was clear that the attorney exemption in the statute is not applicable to out-of-state attorneys, and found the firm’s argument to the contrary, “manifestly without merit.”

Maybe its the fact that techonolgy is breaking down state barriers, or maybe its the fact that summer’s here (well, almost — in Portland, we may break 80 tomorrow), but it seems that there has been an increase in lawyers walking the line with UPL issues. Of course, it could also just be increased prosecution of issues that were always prevelant.

Either way, lawyers who step into a jurisdiction in which they are not officially licensed, should consider whether that jurisdiction has adopted a version of ABA Model Rule 5.5, whether it adopted the safe harbor provisions of the rule, whether their conduct would be covered by the rule, and whether it makes sense to seek some other type of court permission, such as pro hac vice admission.