A multijurisdictional law practice is becoming increasingly common for many attorneys. In addition to presenting opportunities to grow revenue and expand referral networks, attorneys may seek to practice in more than one jurisdiction because modern clients possess legal challenges throughout the country. Further, advances in technology have decreased costs for attorneys to practice or advertise for clients in more than one jurisdiction.
Even though multijurisdictional practices are exceedingly common, they do pose some risks. In Connecticut, the unauthorized practice of law is prohibited by Connecticut Rule of Professional Conduct 5.5, which prohibits a lawyer from both practicing in a foreign jurisdiction “where doing so violates the regulation of the legal profession in that jurisdiction,” as well as “assist[ing] a person who is not a member of the bar … in the performance of activity that constitutes the unauthorized practice of law.” Id. In some jurisdictions, there are also criminal statutes that prohibit nonlawyers from holding themselves out as practicing attorneys.
To comply with the rules, many attorneys will seek admission to the bar of a sister state they want to practice in. Specifically, many Connecticut attorneys may seek clients in neighboring states, such as New York, or have existing clients that need representation there. Although New York recently adopted the Uniform Bar Examination, which has facilitated admission for many attorneys, restrictions remain. Most notably, New York’s in-state office requirement has survived a recent, highly debated legal challenge.
New York’s In-State Office Statute
New York is one of the few jurisdictions that requires state-licensed attorneys to maintain a physical office in New York, even if they reside elsewhere. The statute, N.Y. Judiciary Law Section 470, provides that an attorney that is admitted in New York but resides in another jurisdiction must maintain an “office for the transaction of law business” in New York.
Recently, an attorney who resided in New Jersey but was admitted in New York challenged the statute on the basis that it violates the U.S. Constitution’s Privileges and Immunities Clause and discriminates against nonresident attorneys. However, in a divided decision, the U.S. Court of Appeals for the Second Circuit determined that Section 470 does not violate the Constitution’s Privileges and Immunities Clause. See Schoenefeld v. Schneiderman, 821 F.3d 273 (2d Cir. 2016).
The court interpreted the law to have a valid purpose, which is to level the playing field between both resident and nonresident attorneys that sought to practice in New York. Because both categories of attorneys are required to maintain an office, the court rejected Schoenefeld’s argument that the law was passed for a protectionist purpose, i.e., to burden nonresident attorneys admitted to practice law in New York. The Second Circuit further noted that the Privileges and Immunities Clause does not require that nonresident attorneys be permitted to practice law in New York without obstacle, but rather that a law cannot discriminate between the two groups.
One judge dissented, however, concluding that the law indeed discriminates against nonresident attorneys “with regard to their right to pursue a common calling,” and that the state “failed to provide a substantial justification” for that discrimination. Id. at 296.
The Supreme Court denied certiorari, so the Second Circuit’s decision stands. While the long-term impact of the decision remains uncertain, the decision may lend support to state bars and legislators that seek to pass similar rules to protect in-state attorneys, especially as multijurisdictional practices grow. It also creates potential risk for New York admittees who live and practice outside of New York.
Considerations for Connecticut Attorneys
Separately from the potential risks for New York admittees living and working in Connecticut, attorneys in Connecticut can also give thought to the risk of assisting in the unauthorized practice of law by others. If asked to serve as local counsel for a matter, many Connecticut attorneys will take steps to support their colleagues’ admission to the case on a pro hac vice matter. Similarly, many Connecticut attorneys will take care not to facilitate the unauthorized practice of law by others.
Indeed, Connecticut courts have found that attorneys engage in the unauthorized practice of law when they are not admitted to practice in Connecticut but provide legal services in Connecticut for their clients. Attorneys that are admitted in another jurisdiction can, however, be admitted to practice pro hac vice in the state by complying with Conn. Super. Ct. R. §2-16. Although a prior version of this rule was interpreted to only permit such admission for a pending case or appeal, the current version allows, “upon special and infrequent occasion and for good cause shown” for an attorney to be permitted to participate in “any state court or a proceeding before any municipal or state agency, commission, board or tribunal.” Id.
A multijurisdictional practice may be appealing for attorneys seeking to expand their practice or to best represent their existing clients. Attorneys may also seek to grow their network by teaming up with out-of-state lawyers to provide in-state representation. In order to ensure they are not running afoul of jurisdictions’ rules, many attorneys will ensure they stay apprised of the local customs and procedures wherever they render legal services.
Alanna G. Clair is a partner at Dentons in Washington, D.C., and focuses on professional liability defense. Shari L. Klevens is a partner at the firm in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons’ global insurance sector team. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”