Unauthorized Practice and Supervising Non-Lawyers
Two rules sit close together and are often read as one. The first governs where a lawyer may practice and what an unlicensed person may not do. The second makes a lawyer answerable for the conduct of everyone who works under them, which is a wider net than most firms assume.
The rule in short
A lawyer may not practice in a jurisdiction in violation of its regulation of the profession, nor assist another in doing so. The model rule permits temporary practice elsewhere on four bases: association with active local counsel, work related to a proceeding where admission is expected, work related to an alternative dispute resolution proceeding, and work related to the lawyer's home-state practice. A lawyer is separately answerable for non-lawyers whose work they direct.
The rule against unauthorized practice does two things at once. It tells a lawyer where they may practice, and it forbids assisting anyone else in practicing without authority. The second half is what makes the rule matter inside a firm, because the people a lawyer assists most often are the ones sitting across the hall.
What counts as practicing law
There is no national definition. Each jurisdiction decides for itself what constitutes the practice of law, usually through a mixture of statute, court rule and decisions, and the definitions are not identical. Most center on the same idea: applying legal principles to the particular circumstances of another person, in a relationship where that person relies on the adviser's judgment.
The recurring hard cases sit at the edges. Filling in a form at a customer's direction is usually not practice; choosing which form and explaining its effect usually is. Selling a document assembly product is generally permitted; advising a purchaser which clauses to select generally is not. Representing a party before an administrative agency may be expressly authorized by federal law regardless of state licensure, which is why patent practice and certain immigration and benefits work follow their own rules.
The four routes into another state
A lawyer admitted and in good standing in one state, and not disbarred or suspended anywhere, may provide legal services on a temporary basis in a state where they are not admitted on four bases. The first is undertaken in association with a lawyer admitted in that state who actively participates in the matter, which means genuine involvement rather than a name on the caption.
The second covers services reasonably related to a pending or potential proceeding before a tribunal, where the lawyer is authorized to appear or reasonably expects to be. The third covers services reasonably related to a pending or potential arbitration, mediation or other alternative dispute resolution proceeding, where the services arise out of or are reasonably related to the lawyer's home-state practice and no admission requirement applies. The fourth is the broadest: services that arise out of or are reasonably related to the lawyer's practice in the state of admission.
None of the four routes permits a lawyer to establish an office or other systematic and continuous presence in the host state, or to hold out to the public as admitted there. A lawyer whose contacts with a state accumulate over years of related matters can lose the benefit of the temporary provisions without any single matter being improper. Systematic presence is judged by the pattern, not by the label on the engagement.
| Activity in a state of non-admission | Basis relied on | Principal condition |
|---|---|---|
| Appearing at a hearing in a filed case | Admission for the particular case by the tribunal | Motion, usually by local counsel, and the tribunal's leave |
| Taking depositions before any appearance is filed | Services related to a pending or potential proceeding | Reasonable expectation of being authorized to appear |
| Representing a client in an arbitration | Services related to an alternative dispute resolution proceeding | Related to the home-state practice; no admission requirement in force |
| Advising a long-standing client on a deal with a local counterparty | Services related to the lawyer's home-state practice | No office, no systematic presence, no holding out |
| Opening a branch office and taking local clients | None of the temporary routes | Admission in the state, or an authorized in-house or foreign lawyer status |
Answering for non-lawyers
The companion rule sets three layers of responsibility. A partner or a lawyer with comparable managerial authority must make reasonable efforts to ensure the firm has measures in effect giving reasonable assurance that non-lawyers behave compatibly with the professional obligations of the lawyer. A lawyer with direct supervisory authority must make reasonable efforts to ensure the same of the particular person supervised.
The third layer is personal. A lawyer is responsible for conduct by a non-lawyer that would be a violation if engaged in by a lawyer, where the lawyer ordered or ratified the conduct with knowledge of it, or where the lawyer is a manager or supervisor, knows of the conduct at a time when its consequences can be avoided or mitigated, and fails to take reasonable remedial action. Knowledge plus inaction is the trigger.
The comment extends the duty beyond employees to non-lawyers outside the firm whose services a lawyer uses: document management vendors, investigators, contract review services, cloud storage providers. The extent of the required diligence varies with the sensitivity of the information and the vendor's own arrangements, but the responsibility does not disappear because the work has been bought rather than hired.
Who may own and direct a practice
A third rule sits behind both of these and is easy to overlook. A lawyer may not form a partnership with a non-lawyer if any activity of the partnership consists of the practice of law, may not permit a person who recommends or pays for the lawyer's services to direct the lawyer's professional judgment, and may not practice in an entity in which a non-lawyer owns an interest or serves as a director, subject to narrowly drawn exceptions.
The prohibition exists to keep the client's interest ahead of an investor's, and it is the point at which alternative business structures common in other countries run into American regulation. A small number of jurisdictions have created limited programs allowing non-lawyer ownership under regulatory supervision, and those programs are exceptions granted by a state to its own rule rather than a change in the general position.
Where supervision actually fails
Disciplinary cases in this area cluster around a small number of situations. A non-lawyer with signature authority over an account, and no lawyer reviewing statements, produces the trust account cases that the safekeeping rules are designed to prevent. Staff who communicate with clients without supervision give advice that the firm is then answerable for. And a screen erected around a lateral hire fails when the paralegal who moved with them is not inside it, which is why screening a lateral hire has to cover support staff on the same terms as lawyers.
Two further points bear on cross-border work. Which state's rules govern a lawyer's conduct is settled by a choice-of-law provision that generally points to the tribunal's jurisdiction for matters before a tribunal, and otherwise to the jurisdiction where the conduct occurred or had its predominant effect. And what a lawyer may say publicly about where they practice is constrained by the rules on communications concerning a lawyer's services, which require any jurisdictional limitation on admission to be stated rather than implied.
Points to carry away
- What constitutes the practice of law is defined by each jurisdiction, and no national definition exists.
- The model rule permits four categories of temporary practice by a lawyer admitted elsewhere and in good standing.
- None of the temporary practice routes allows a lawyer to open an office or hold out as admitted in the host state.
- A lawyer with managerial authority must ensure the firm has measures giving reasonable assurance that non-lawyers behave compatibly with the rules.
- A lawyer is responsible for a non-lawyer's conduct that would be a violation if done by a lawyer, where the lawyer orders it or ratifies it knowingly.
- Delegation is permitted broadly; abdication of professional judgment is not.
Questions readers ask
Does working remotely from another state count as practicing there?
A lawyer physically located in one state while serving clients under the law of the state of admission, without holding out as admitted locally and without soliciting local clients, is generally not treated as engaged in unauthorized practice. Several jurisdictions have said so expressly through ethics opinions or rule amendments, reasoning that the concern is protection of the local public rather than the lawyer's geographic position. The analysis depends on the host state's own rule, and a lawyer who advertises a local address or takes local matters is in a different position.
What tasks may a paralegal perform without crossing the line?
Almost any task a lawyer performs may be delegated, including drafting, research, client contact and document management, provided a lawyer supervises the work, reviews it, and retains responsibility for the professional judgments involved. What may not be delegated is the exercise of independent legal judgment for a client: giving legal advice, accepting a matter, setting a fee, and appearing in a representative capacity where appearance is limited to lawyers. The client should also understand that the person they are dealing with is not a lawyer.
Is admission pro hac vice the same as multijurisdictional practice?
No. Admission for a particular case is granted by the tribunal under its own rules, usually on a motion by local counsel, and it authorizes appearance in that proceeding. The temporary practice provisions cover conduct that is not an appearance at all: taking depositions, advising a client on a transaction connected to the home-state practice, negotiating a settlement. A lawyer may rely on the temporary practice provisions to prepare a case in advance of a motion for admission, provided the lawyer reasonably expects to be admitted.
Sources
- ABA Model Rules of Professional Conduct — Rule 5.5, Unauthorized Practice of Law; Multijurisdictional PracticeThe prohibition and the four bases on which a lawyer may practice temporarily in another jurisdiction.
- ABA Model Rules — Rule 5.3, Responsibilities Regarding Nonlawyer AssistanceSets managerial, supervisory and personal responsibility for the conduct of non-lawyers.
- ABA Model Rules — Comment on Rule 5.3Extends the duty to outside service providers and explains what supervision requires.
- ABA Model Rules — Rule 5.1, Responsibilities of a Partner, Manager and Supervisory LawyerThe parallel obligation owed in respect of subordinate lawyers and firm-wide systems.
- ABA Model Rules — Rule 5.4, Professional Independence of a LawyerBars non-lawyer ownership and direction of a law practice, and fee sharing with non-lawyers.
- ABA Model Rules — Rule 8.5, Disciplinary Authority; Choice of LawDetermines which jurisdiction's rules apply to a lawyer practicing across state lines.
- New York State Unified Court System — Attorney ResourcesA state judiciary's own admission and practice requirements, illustrating locally set conditions.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
