ISBA 2023-03-01

May a Florida-admitted lawyer with no Illinois bar admission send a demand letter to an Illinois business on behalf of an Illinois-resident friend in an employment matter?

Short answer: Per the opinion, no on these facts. The committee concludes that sending a demand letter to resolve an Illinois dispute is the practice of law in Illinois, and none of the temporary-practice exceptions in Rule 5.5(c) applies. The friend relationship and the pro bono nature of the help do not change the analysis.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

ISBA Professional Conduct Advisory Opinion 23-01: Out-of-State Lawyer Demand Letter Into Illinois

Short answer: The opinion concludes that, on the facts presented, a Florida-admitted lawyer who is not admitted in Illinois may not send a demand letter to an Illinois employer to resolve a wage dispute on behalf of an Illinois-resident friend. The committee analyzes each of the Rule 5.5(c) temporary-practice exceptions and finds that none applies; the lawyer's stated goal of resolving the matter through the letter (avoiding litigation) defeats the Rule 5.5(c)(2) "potential proceeding" exception. The friend relationship and pro bono framing do not affect the analysis.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Illinois Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquiring lawyer is admitted only in Florida and proposes to send a demand letter, signed "Esq.," to an Illinois employer that refused to pay an Illinois-resident friend's earned wages and refused to issue a W-2. The lawyer offers to handle the matter pro bono and to apply for pro hac vice admission or refer to an Illinois lawyer if litigation becomes necessary. The Committee analyzes the proposed conduct under Illinois Rule 5.5.

Rule 5.5(a) prohibits practicing law in Illinois in violation of the regulation of the profession. The Committee notes that unauthorized practice reaches lawyers admitted elsewhere, not just non-lawyers, citing In re Maurice James Salem (90-day suspension of a non-Illinois lawyer who appeared in Illinois court and represented himself as an Illinois lawyer). The Committee also draws on In re Charges of Unprofessional Conduct in Panel File No. 39302 (Minn. 2016), where a Colorado lawyer was privately admonished for unauthorized practice based on out-of-state debt-settlement negotiations on his in-laws' behalf, and on Attorney Grievance Commission of Maryland v. Jude Ambe, finding Rule 5.5 violations from demand letters sent into Maryland.

The Committee then walks the Rule 5.5(c) exceptions in order. Rule 5.5(c)(1) requires association with an Illinois lawyer who actively participates; the inquirer does not propose such association, so the exception does not apply. The Committee cites Antonacci v. Seyfarth Shaw, LLP and Clark v. Gannett Co. on what active participation requires.

Rule 5.5(c)(2) permits temporary services that are in or reasonably related to a pending or potential proceeding in which the lawyer reasonably expects to be authorized to appear. The Committee concludes the exception does not apply here because the demand letter is intended to resolve (not preliminary to) the dispute. The Committee draws on Comment 10's examples (client meetings, witness interviews, document review) and on Morrison v. West (Fla. 4th DCA 2010) (North Carolina lawyer denied a fee for unauthorized practice in Florida where he "anticipated" securing local counsel but did not before the matter settled). The Committee summarizes its view: "the mere sending of correspondence into Illinois by a non-Illinois lawyer is [not] a violation of Rule 5.5," but the letter here is intended to resolve the matter, not to lead to a proceeding in which the lawyer would seek admission.

Rule 5.5(c)(3) requires a pending or potential arbitration, mediation, or ADR proceeding; the facts do not support that. Rule 5.5(c)(4) requires the services to arise out of or be reasonably related to the lawyer's practice in a jurisdiction where she is admitted; the facts do not support that either. The Committee references Comment 14's list of factors (prior representation, client's residence in the lawyer's home jurisdiction, lawyer's specialized expertise) and finds none in play.

The Committee notes Minnesota's response to Panel File No. 39302: Minnesota amended Rule 5.5(c)(4) to add an exception for representation of family members. Illinois has no such exception, and the Committee observes that the friend relationship and the pro bono nature of the proposed work do not affect the unauthorized-practice analysis.

In practice

Under this opinion, the Florida-admitted lawyer described in the inquiry may not send the Illinois demand letter. The committee reaches that conclusion only on these facts, and the opinion is explicit that some non-Illinois lawyers' demand letters into Illinois may fall within a Rule 5.5(c) exception. Per the opinion, the controlling questions are whether the lawyer's activity is preliminary to a proceeding in which the lawyer reasonably expects to appear (Rule 5.5(c)(2)), whether the matter is connected to ADR (Rule 5.5(c)(3)), and whether the matter reasonably relates to the lawyer's home-jurisdiction practice (Rule 5.5(c)(4)). The Committee notes that Florida has a parallel opinion (No. SC20-1220, May 20, 2021) permitting a non-Florida lawyer to practice the law of his licensure state while physically in Florida, but that case turned on the lawyer not practicing Florida law.

Common questions

Q: Does sending a single demand letter from out of state count as the practice of law in Illinois?

A: Per the opinion, yes when the letter is intended to resolve an Illinois dispute. The Committee specifically rejects a "physical presence" line of analysis and follows In re Panel File No. 39302 (Minn. 2016) for the proposition that out-of-state correspondence aimed at resolving a matter can be unauthorized practice in the destination jurisdiction.

Q: Does the lawyer's willingness to apply for pro hac vice if the letter does not resolve the matter save the conduct under Rule 5.5(c)(2)?

A: The opinion concludes no, because Rule 5.5(c)(2) requires the lawyer to reasonably expect to be so authorized. If the goal is to avoid litigation through the letter, the lawyer does not reasonably expect pro hac admission. The Committee draws on Morrison v. West for the parallel result.

Q: Does it matter that the representation is for a friend and is pro bono?

A: The opinion concludes no. The Committee observes that Illinois Rule 5.5 has no friend or family exception (unlike Minnesota's post-Panel File 39302 amendment that adds a family-member exception). The fact that the help is offered pro bono does not affect the analysis.

Q: What exception would have allowed this conduct?

A: Per the opinion, association with an Illinois lawyer who actively participates (Rule 5.5(c)(1)); a pending or potential Illinois proceeding (Rule 5.5(c)(2)); a connected ADR proceeding (Rule 5.5(c)(3)); or a matter reasonably related to the lawyer's home-jurisdiction practice (Rule 5.5(c)(4)). The committee cites Antonacci v. Seyfarth Shaw on active participation and Clark v. Gannett Co. on the limits of "mere conduit" arrangements.

Background and rules framework

The opinion interprets Illinois Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law). Rule 5.5(a) prohibits practicing law in a jurisdiction in violation of that jurisdiction's regulation of the profession. Rule 5.5(c) sets out four exceptions allowing a lawyer admitted in another U.S. jurisdiction to provide services in Illinois on a temporary basis: (c)(1) association with an Illinois-admitted lawyer; (c)(2) services in or reasonably related to a pending or potential tribunal proceeding in which the lawyer reasonably expects to be authorized; (c)(3) services in or reasonably related to a pending or potential ADR proceeding; and (c)(4) other services arising out of or reasonably related to the lawyer's home-jurisdiction practice. The Committee draws on Comments 8, 9, 10, and 14 in applying each exception.

Citations and references

Rules of Professional Conduct:

Ill. Sup. Ct. R. Prof'l Conduct, R. 5.5 and Comments 8, 9, 10, 14
Ill. Sup. Ct. R. 707 (limited admission)
Minn. R. Prof'l Conduct 5.5(c)(4) (referenced for contrast on family-member exception)

Cases:

In re Maurice James Salem, 2016PR00043; M.R.029649, suspension of non-Illinois lawyer who held out as Illinois lawyer.
In re Charges of Unprofessional Conduct in Panel File No. 39302, 884 N.W.2d 661 (Minn. 2016), out-of-state debt-settlement negotiations as unauthorized practice.
Antonacci v. Seyfarth Shaw, LLP, 2015 IL App (1st) 142372, active participation by Illinois supervising attorney satisfied Rule 5.5(c)(1).
Clark v. Gannett Co., 2018 IL App (1st) 172041, "mere conduit" arrangement insufficient; referred to ARDC.
Morrison v. West, 30 So. 3d 561 (Fla. 4th DCA 2010), non-Florida lawyer denied a fee for unauthorized practice where he anticipated but did not secure local counsel.
Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 6, Sept. Term 2011, demand letters in unauthorized state-law practice.
State ex rel. Indiana Supreme Court Disciplinary Comm'n v. Farmer, 978 N.E.2d 409 (Ind. 2012), reasonable belief in pro hac admission discussion.

Other opinions cited:

ISBA Opinion 02-04: Illinois lawyer's out-of-state negotiation of Illinois medical claims.
ISBA Opinion 14-04: non-Illinois lawyer advertising into Illinois; required local counsel.
Florida Bar Advisory Opinion No. SC20-1220 (May 20, 2021): non-Florida lawyer working remotely from Florida on non-Florida matters.

Source

Landing page: https://www.isba.org/ethics/opinions/2301