Can an Illinois lawyer negotiate a client's out-of-state injury claim from his home office without associating local counsel?
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This page answers the general question as of 2003. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer licensed in Illinois and another state (State X) moved his practice to State X while keeping his Illinois license. An Illinois couple he knew was in a car accident in a third state (State Y), where he is not licensed, and was treated medically in Illinois. He asked whether he could settle their claim for the medical matters in State Y without associating a State Y lawyer, and whether doing so would violate Illinois Rule 5.5(a) regardless of how State Y's own unauthorized-practice law came out.
The Committee starts from Rule 5.5, which bars practicing law where doing so violates that jurisdiction's regulation of the profession, and bars assisting a nonlawyer in the unauthorized practice. Whether conduct is the practice of law turns on the character of the acts: acts requiring legal expertise beyond ordinary business judgment are the practice of law (Chicago Bar Ass'n v. Quinlan & Tyson). The Committee assumes no suit has been filed in State Y, that the only service is negotiating the claim from the lawyer's office in State X where he is licensed, and that he is not habitually doing such work but is helping a couple he knows.
On those facts, the Committee concludes that while the lawyer may be practicing law, it is not the "unauthorized" practice in State Y, because he conducts the negotiation from a state where he is licensed. So he may settle the State Y claim without associating local counsel, and doing so does not violate Rule 5.5(a). The opinion adds a caveat: if the lawyer physically leaves the state where he is licensed and enters State Y to conduct the negotiation, the question becomes less clear, citing Lozoff v. Shore Heights, Ltd. (a Wisconsin-only lawyer who rendered services on an Illinois real estate transaction engaged in unauthorized practice and could not recover fees).
Currency note
This opinion was issued in 2003, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering; the 2010 Rules address multijurisdictional practice in Rule 5.5(c). Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule cited here.
In practice
Under the Illinois rule as it stood at the time, the opinion holds that negotiating an out-of-state claim from the lawyer's own licensed office, with no suit filed and on an isolated basis for a known client, was not the unauthorized practice of law and did not require associating counsel in the other state. The Committee identifies the location from which the lawyer works as the operative factor, and flags that physically entering the other state to negotiate would make the analysis less clear. It notes that whether the conduct violates the other state's unauthorized-practice law is governed by that state's law, not the Illinois rule.
Common questions
Q: Can an Illinois lawyer negotiate a client's claim arising in another state?
A: On these facts, yes. The opinion concludes that negotiating the claim from the lawyer's office in a state where he is licensed, with no suit filed, is not the unauthorized practice of law and does not require local counsel.
Q: Does the lawyer have to associate a lawyer licensed in the other state?
A: No. The opinion concludes association of local counsel is not required where the lawyer conducts the negotiation from a jurisdiction in which he is licensed.
Q: Does it matter if the lawyer travels into the other state to negotiate?
A: Possibly. The opinion says that if the lawyer leaves the state where he is licensed and enters the other state to conduct the negotiation, the issue becomes less clear, citing Lozoff v. Shore Heights.
Q: Whose law decides if this is unauthorized practice in the other state?
A: The opinion notes that whether the conduct is the unauthorized practice of law in State Y is governed by State Y's law; the opinion addresses only the Illinois Rule 5.5(a) question.
Background and rules framework
The opinion interprets Illinois Rule 5.5 (unauthorized practice of law and assisting unauthorized practice, corresponding to Model Rule 5.5). Whether an activity is the practice of law turns on the character of the acts under Quinlan & Tyson: acts requiring legal expertise beyond ordinary business judgment qualify. The analysis keys on the jurisdiction from which the lawyer performs the negotiation.
Citations and references
Rules of Professional Conduct:
- Model Rule 5.5 / Illinois Rule 5.5 (unauthorized practice of law; multijurisdictional practice)
Cases:
- Chicago Bar Ass'n v. Quinlan & Tyson, Inc., 34 Ill. 2d 116, 214 N.E.2d 771 (1966), what constitutes the practice of law
- Lozoff v. Shore Heights, Ltd., 66 Ill. 2d 398, 362 N.E.2d 1047 (1977), out-of-state lawyer's unauthorized practice and fee recovery
- In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999), practice-of-law standard
Other opinions cited:
- ISBA Advisory Opinion 92-15: out-of-state attorney working as a municipal personnel officer
See also
- ABA Formal Op. 495: Lawyers Working Remotely
- ABA Formal Op. 504: Choice of Law
- ABA Formal Op. 01-423: Forming Partnerships With Foreign Lawyers
Source
- Landing page: https://www.isba.org/ethics/opinions/0204
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