Association of Professional Responsibility Lawyers proposes amendment to Model Rules to allow cross border practice -- UPDATED

April 24, 2022

Because of the pandemic, many lawyers were forced to start practicing remotely and for some of them this meant practicing "across borders," meaning that the lawyer was located in a different jurisdiction than the one they were practicing in.  This is not unusual.  Lawyers who practice in New York may live in New Jersey; lawyers in Chicago may live in Wisconsin or Indiana, etc.  

In response to this "new normal," a number of jurisdictions have issued recent opinions on practicing law remotely, and as much as I can remember they all said it would be allowed subject to some obvious restrictions (most notably that the lawyer could not pretend to be admitted in a jurisdiction in which they were not, or have a "presence" or an office, in a jurisdiction in which they were not admitted, and so on.)

But the situation also helped revive a very old debate: whether lawyers should be allowed to practice anywhere in the country as long as they are admitted somewhere in the country.  This issue has been raised and debated many times and, unfortunately in my opinion, the prevailing view remains that jurisdictions should be allowed to close their borders to "outsiders."  

I have never liked this approach and I am happy to report that the Association of Professional Responsibility Lawyers (APRL) is addressing the issue again.  In a letter to the ABA, APRL has included a report and a proposal urging the ABA to adopt a new version of Model Rule 5.5 that would eliminate the traditional state-based limitation on law practice, by which lawyers can practice only in the states in which they are admitted.  (Follow the links to the text of the letter, report and proposed amendment.)

You can read more on the story in Faughnan on Ethics (the blog of the current president of APRL), the ABA Journal, and LawSites. 

Allowing lawyers to practice across borders will favor the bigger law firms with lots of resources, but I think it will also be beneficial for small firms and solo lawyers who want to move to new locations for any number of reasons. And it will likely have a positive impact in the ability of clients to find lawyers, thus improving access to legal representation -- a goal we have been casing after since forever.

Does the proposal have a chance of getting adopted?  I don't know.  A couple of years ago, I would have said definitely not.  But back then I would also have said that proposals to allow partnerships with non-lawyers, alternative business structures and provision of legal services by non-lawyers did not have a chance and now we have two states that have adopted all of these and more states actively considering similar alternatives.... so what do I know.  Change is slow in the legal profession, but it does happen sometimes...

UPDATE 5/4/22:  Lex Blog has published a comment on this topic here.