Can a lawyer who moved to Michigan keep practicing for clients in states where they are licensed while a Michigan bar application is pending?

Plain-English summary

The Committee addressed a lawyer relocating to Michigan who remained in good standing in two other jurisdictions and had applied to the State Bar of Michigan. While that application was pending before the Board of Law Examiners (BLE), the lawyer wanted to continue working remotely from Michigan for an out-of-state firm, handling only matters in the two states where the lawyer was already licensed. The lawyer asked whether this violated the Michigan rules on the unauthorized practice of law.

The Committee concluded the arrangement was permissible. MRPC 5.5(b)(1) bars an unadmitted lawyer from establishing "an office or other systematic and continuous presence in this jurisdiction for the practice of law," but MRPC 5.5(c)(4) exempts temporary legal services that "arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice." The Committee found the services here "temporary" because they had a predefined, short-term endpoint, the BLE's decision on the application, drawing on the Rule 5.5 commentary that services can be temporary even if recurring or for an extended period.

The Committee found the remaining conditions of Rule 5.5(c)(4) satisfied: the lawyer was admitted in another jurisdiction (in fact two), and the Michigan work arose out of and was reasonably related to the lawyer's existing practice. It reasoned the arrangement also served the rule's purpose of protecting the public, since the lawyer would not handle Michigan matters or hold out as Michigan-licensed, comparing it to "a short-term telework arrangement." The Committee relied on In re Jones, 2018-Ohio-4182, which reached the same result on similar facts, and noted that its reading avoided the constitutional concerns flagged by the concurring justices there.

In practice

The opinion holds that, under MRPC 5.5(c)(4), an out-of-state lawyer who relocates to Michigan with a pending bar application may continue to provide legal services from Michigan limited to client matters in the jurisdictions where the lawyer is already admitted, treating those services as temporary because they end when the BLE decides the application. Per the opinion, the analysis turns on the services having a predefined, short-term endpoint and remaining reasonably related to the lawyer's existing practice, with the lawyer neither handling Michigan matters nor holding out as licensed in Michigan.

Common questions

Q: Can a lawyer awaiting Michigan admission work from Michigan on out-of-state matters?

A: The opinion concluded that they may, because such work is a temporary legal service reasonably related to the lawyer's practice in the jurisdictions where the lawyer is already admitted, permitted under MRPC 5.5(c)(4).

Q: Why is open-ended remote work treated as "temporary"?

A: Per the opinion, the services are temporary because they have a predefined, short-term endpoint, the BLE's decision on the bar application, and the Rule 5.5 commentary says services can be temporary even if they recur or extend over time.

Q: What are the limits on what the lawyer may do?

A: The opinion's reasoning is that the lawyer must work only on client matters in the jurisdictions where the lawyer is already licensed and must not hold out as licensed in Michigan; if admission is denied, the lawyer's provision of services from Michigan must cease.

Q: Does establishing a physical Michigan office change the answer?

A: Per the opinion, MRPC 5.5(b)(1) prohibits establishing an office or other systematic and continuous presence in Michigan for the practice of law; the permitted arrangement is the temporary, application-pending telework the opinion describes, not an indefinite or permanent office.

Background and rules framework

The opinion interprets MRPC 5.5 / Model Rule 5.5 (unauthorized practice; multijurisdictional practice), specifically the 5.5(b)(1) prohibition on a systematic and continuous Michigan presence and the 5.5(c)(4) exception for temporary services reasonably related to the lawyer's practice elsewhere, read together with MCL 600.916. The analysis turns on whether the remote services are "temporary" and "reasonably related" to the lawyer's out-of-state practice.

Citations and references

Rules of Professional Conduct:

• MRPC 5.5(b)(1) / Model Rule 5.5(b)(1) (no office or systematic and continuous presence for the practice of law)
• MRPC 5.5(c), 5.5(c)(4) / Model Rule 5.5(c)(4) (temporary services reasonably related to the lawyer's practice elsewhere)

Statutes:

• MCL 600.916 (unauthorized practice of law)

Cases:

• In re Jones, 2018-Ohio-4182, out-of-state lawyer permitted to handle home-state matters from Ohio while an Ohio bar application was pending.
• Grier v. Sunshine Auto Collision Inc, No. 273297, 2007 WL 4126663 (Mich Ct App Nov 20, 2007), purpose of the UPL prohibition.
• Clark v. Martinez, 543 US 371 (2005), construing rules to avoid serious constitutional doubts.

See also

• Mich Ethics Op. RI-110: A Hearing Officer Maintaining a Private Practice
• Mich Ethics Op. RI-125: Supervising a Legal Assistant as Advocate
• Mich Ethics Op. C-239: A Hearing Officer's Duty Toward Unauthorized Practice

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1250&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-380

February 22, 2019

SYLLABUS

An out-of-state lawyer who moves to Michigan and applies for admission to the State Bar of Michigan may continue to practice law in the jurisdictions where the lawyer is already licensed while the lawyer’s State Bar of Michigan application is pending.

References: MRPC 5.5(b)(1), 5.5(c), 5.5(c)(4); MCL § 600.916

TEXT

I.

A lawyer is relocating from another state to Michigan. The lawyer currently works for an out-of-state law firm, is licensed and remains in good standing in two other jurisdictions and has applied to become a member of the State Bar of Michigan.

While that application remains pending before the Board of Law Examiners (BLE), the lawyer wants to continue working remotely from Michigan for the lawyer’s out-of-state law firm. The lawyer will provide legal services only for client matters in the two jurisdictions where the lawyer is already licensed to practice law. Neither of those jurisdictions prohibits the lawyer from providing legal services remotely. If the lawyer’s application to the State Bar of Michigan is approved, the lawyer will be licensed to handle client matters in Michigan. If his application is denied, the lawyer will cease practicing law here.

The lawyer now asks whether this proposed arrangement violates the Michigan Rules of Professional Conduct (MRPC) prohibiting the unauthorized practice of law.

II.

Because the lawyer will only be providing temporary legal services in Michigan that are reasonably related to the lawyer’s practice in other jurisdictions, the proposed arrangement is permissible under the MRPC. A lawyer who is not admitted to practice in Michigan is prohibited from "establish[ing] an office or other systematic and continuous presence in this jurisdiction for the practice of law." MRPC 5.5(b)(1); see also MCL § 600.916. This prohibition, though, does not apply to an out-of-state lawyer who wishes to "provide temporary legal services" in Michigan that "arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice." MRPC 5.5(c)(4).

The lawyer’s proposed arrangement fits that description and therefore does not run afoul of the Michigan prohibition on the unauthorized practice of law. The lawyer’s provision of legal services as an out-of-state attorney in Michigan is "temporary," because it will end when the BLE finishes processing the lawyer’s application and decides whether the lawyer should be admitted to the State Bar of Michigan. If the lawyer is denied admission, his provision of legal services from Michigan will cease entirely. If the lawyer is granted admission, the lawyer will no longer be an out-of-state attorney providing services only in other jurisdictions; instead, the lawyer will be licensed to practice in Michigan. So unlike a more indefinite or permanent arrangement, such as the establishment of a physical office, the lawyer’s provision of legal services under the proposed arrangement has a predefined, short-term endpoint: the BLE’s decision on the lawyer’s bar application.

The commentary to Rule 5.5 supports treating the proposed arrangement as only "temporary." The commentary explains that legal services may be considered "temporary" even if they occur "on a recurring basis or for an extended period of time." MRPC 5.5 cmt. The key inquiry is whether the legal services in Michigan have a predefined, short-term endpoint, such as the end of "a single lengthy negotiation or litigation" or some other discrete block of time. Id.; see also Black’s Law Dictionary (10th ed. 2014) (defining "temporary" as "[l]asting for a time only" or "existing or continuing for a limited . . . time").

The contemplated legal services here also satisfy Rule 5.5(c)(4)’s remaining requirements. The lawyer is admitted "in another jurisdiction"—two of them, in fact. MRPC 5.5(c). The lawyer’s current practice involves working on client matters in those other jurisdictions, and the lawyer will continue working only on client matters in those other jurisdiction. So the contemplated legal services "arise out of or are reasonably related to" the lawyer’s current practice. MRPC 5.5(c)(4).

The proposed arrangement not only complies with the letter of Rule 5.5(c)(4), but also satisfies its purpose. The central reason for prohibiting the unauthorized practice of law "is to protect the public from untrained legal counsel and incorrect legal advice." Grier v. Sunshine Auto Collision Inc, No. 273297, 2007 WL 4126663, at *6 (Mich Ct App Nov 20, 2007). Rule 5.5(c) is thus designed to permit temporary legal services "under circumstances that do not create an unreasonable risk to the interests of clients, the public, or the courts." MRPC 5.5 cmt. The proposed arrangement squares with that purpose. It will not create any risk to the public or the courts, because the lawyer will not be working on Michigan client matters or holding himself out as being licensed in Michigan. And the proposed arrangement will not create any risk to clients, because the lawyer will only be working on client matters in the jurisdictions where the lawyer is already licensed. The lawyer has already been working on those matters; all that has changed is the lawyer’s physical location. In short, this resembles nothing more than a short-term telework arrangement—a far cry from what the unauthorized-practice-of-law rules are intended to prohibit.

The Ohio Supreme Court recently reached the same conclusion in In re Jones, 2018-Ohio-4182 (Oct 17, 2018). There, the attorney was licensed in Kentucky and "practiced law exclusively in matters related to pending or potential proceedings before tribunals in Kentucky." Id. ¶¶ 3–4. The lawyer began working on those Kentucky matters from her law firm’s office in Ohio while the lawyer’s application to the Ohio bar was pending. Id. As here, the attorney was only "providing services on a temporary basis," because those services would "continue only until [her] application [to the Ohio bar was] resolved." Id. at 20; see also Id. at 21. And as here, the attorney was only handling client matters in the state where the lawyer was already licensed to practice law. Id. at 21. On those facts, the Ohio Supreme Court held that the attorney’s arrangement was permissible under the Ohio Rules of Professional Conduct, relying on language that mirrors MRPC 5.5(c)(4). Id. at 2, 14–23. That reasoning applies equally here.

Further, as Jones indirectly suggests, our reading of Rule 5.5(c)(4) avoids the constitutional concerns that might otherwise result from prohibiting the lawyer’s proposed arrangement here. When "choosing between competing plausible interpretations" of a rule, it must be presumed that the drafters "did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez, 543 US 371, 381 (2005). In Jones, three concurring justices on the Ohio Supreme Court would have held that the Ohio Rules of Professional Conduct violated the Fourteenth Amendment’s Due Process Clause if they prohibited the attorney’s legal services there. In re Jones, 2018-Ohio-4182, 23–47 (DeWine, J., concurring in the judgment only). Our interpretation of MRPC 5.5(c)(4) avoids raising those "serious constitutional doubts." Clark, 543 US at 381.

CONCLUSION

An out-of-state lawyer who moves to Michigan and applies for admission to the State Bar of Michigan may continue to practice law in the jurisdictions where he is already licensed while the lawyer’s State Bar of Michigan application is pending.