Can a lawyer licensed only in another state represent a party in an Illinois grievance arbitration, and how may that lawyer advertise in Illinois?

Plain-English summary

A lawyer licensed in a state other than Illinois wants to represent employers in union grievance arbitrations in Illinois. These arbitrations arise from collective bargaining agreements, are heard by arbitrators (often non-lawyers) under relaxed evidence rules, and the agreements let either party choose a representative who need not be a lawyer. The lawyer asked whether such representation is the practice of law, whether an out-of-state lawyer may handle it without an Illinois license, and whether a proposed advertisement (and its placement in a trade journal or by direct mail) would comply with the rules.

On the first question, the opinion notes Illinois treats the practice of law as broader than courtroom litigation and includes representing parties before arbitrators (citing Goodman and Schafer), but that the Appellate Court has held an out-of-state lawyer representing a party in arbitration is not necessarily engaged in unauthorized practice (Colmar). Given Colmar and the 2010 revisions to Rule 5.5, the opinion declines to decide whether arbitration representation is the practice of law, and answers the multijurisdictional question directly.

On the second question, the opinion concludes Rule 5.5(c)(3) allows an out-of-state lawyer (not disbarred or suspended) to provide legal services for the grievance arbitration if the services are (1) temporary, (2) reasonably related to the lawyer's practice in the home jurisdiction, and (3) not in a forum requiring pro hac vice admission. It walks through the Rule 5.5 comments: "temporary" services may recur or run a long time and turn on the absence of a systematic, continuous Illinois presence (Comments 4-6); the "reasonably related" factors appear in Comment 14 (the committee declines to apply them because the inquirer gave no detail about the practice); pro hac vice is required only for court-annexed proceedings (Comment 12). The lawyer must not hold out as Illinois-admitted (Comment 4; Rule 7.1), may need to tell the client the lawyer is not Illinois-licensed (Comment 20), and is subject to Illinois disciplinary authority (Comment 19; Rule 8.5(a)).

On advertising, the opinion notes Comment 21 directs out-of-state lawyers to Rules 7.1 to 7.5. The proposed ad would violate the rules because it does not disclose the lawyer's jurisdictional limitation, making it misleading under Rules 7.1 and 7.5(b). If the ad otherwise complied, it could appear in a trade or professional journal under Rule 7.2, and could be mailed directly to Illinois employers under Rule 7.3 provided it carries the "Advertising Material" label. The committee expresses no opinion on when out-of-state advertising becomes so continuous and systematic that it defeats the "temporary" basis under Rule 5.5.

In practice

The opinion holds that an out-of-state lawyer who is not disbarred or suspended may represent a party in an Illinois grievance arbitration under Rule 5.5(c)(3) when the services are temporary, reasonably related to the lawyer's home-state practice, and not in a pro-hac-vice forum, and that such a lawyer must not hold out as Illinois-admitted and remains subject to Illinois discipline under Rule 8.5. It holds the lawyer may advertise in Illinois under Rules 7.1 to 7.5, including in trade journals (Rule 7.2) and by direct mail labeled "Advertising Material" (Rule 7.3), but the advertisement must clearly disclose where the lawyer is licensed or it is misleading. The opinion expressly declines to decide whether arbitration representation is itself the practice of law and when advertising volume defeats the "temporary" basis.

Common questions

Q: Can a lawyer licensed only in another state handle an Illinois grievance arbitration?

A: Yes, temporarily. The opinion concludes Rule 5.5(c)(3) permits it if the services are temporary, reasonably related to the lawyer's home-state practice, and not in a forum requiring pro hac vice admission.

Q: Does the lawyer need to decide whether arbitration is the practice of law first?

A: No. The opinion declines to decide that question, relying on Colmar and the revised Rule 5.5 to answer the multijurisdictional-practice issue directly.

Q: Can an out-of-state lawyer advertise legal services in Illinois?

A: Yes, under Rules 7.1 to 7.5, but the advertisement must clearly disclose the jurisdiction in which the lawyer is licensed. The opinion holds the proposed ad was misleading because it omitted that disclosure.

Q: Can the ad be mailed directly to Illinois employers?

A: Yes, if it complies with Rule 7.1 and carries the "Advertising Material" label required by Rule 7.3 for direct solicitation.

Background and rules framework

The opinion interprets Illinois Rule 5.5 (unauthorized and multijurisdictional practice; Model Rule 5.5), particularly the temporary-services provision of Rule 5.5(c)(3) and its comments, and Rules 7.1, 7.2, 7.3, and 7.5 (lawyer advertising and solicitation; Model Rules 7.1-7.3, 7.5), with Rule 8.5(a) on disciplinary authority over lawyers practicing under Rule 5.5. It applies Illinois case law on the scope of the practice of law and on out-of-state representation in arbitration.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 5.5 (unauthorized/multijurisdictional practice) / MR 5.5
• Illinois RPC 7.1, 7.2, 7.3, 7.5 (advertising and solicitation) / MR 7.1-7.3, 7.5
• Illinois RPC 8.5(a) (disciplinary authority) / MR 8.5

Cases:

• Colmar, Ltd. v. Freemantlemedia North America, Inc., 344 Ill. App. 3d 977 (2003), out-of-state lawyer in arbitration not necessarily UPL
• People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937), representation before an arbitrator can be the practice of law
• People ex rel. Illinois State Bar Ass'n v. Schafer, 404 Ill. 45, 87 N.E.2d 773 (1949), practice of law defined broadly
• NISHA, LLC v. Tribuilt Constr. Group, LLC, 2012 Ark. 130 (2012), contra: non-lawyer in arbitration as UPL

Other authorities:

• 705 ILCS 205/1; 68 Ill. Adm. Code 1110.90; 83 Ill. Adm. Code 200.90; 50 Ill. Adm. Code 8100.2112
• ABA Model Rule 5.5

See also

• ISBA Ethics Op. 12-09: Out-of-State Lawyer May Not Primarily Practice in Illinois
• NY State Bar Op. 1091: Reporting an Out-of-State Lawyer's Unauthorized Practice
• NY State Bar Op. 1023: Of Counsel to an Out-of-State Firm With a Trade Name

Source

• Landing page: https://www.isba.org/ethics/opinions/1217