“Troubling and counterproductive” – yep

One of the more archaic aspects of lawyer regulation is the heavy-handed approach to UPL.  And, I’m not referring to UPL in the sense of something done that involves the practice of law by a person who isn’t a lawyer anywhere.  I’m referring to regulatory efforts involving UPL that are brandished against someone who is a lawyer somewhere but not licensed in the jurisdiction that happens to be doing the regulating.

Admittedly, a heavy-handed approach almost inevitably follows from the fact that our profession continues to embrace a model in which each state’s law is treated as being of such unique character in all respects that a lawyer in Wyoming cannot be considered competent to practice law in Wisconsin absent obtaining a Wisconsin law license in addition to the Wyoming law license.

The adoption of ABA Model Rule 5.5 — which has been embraced by many U.S. jurisdictions — was supposed to go a long way toward making the realities of cross-border practice a safer proposition for modern-day lawyers.  Unfortunately, a recent private admonition imposed in Minnesota on a Colorado lawyer offers a pretty good example of just how archaic and heavy handed the regulation of UPL continues to be despite such efforts.  Almost the only positive that I can bring myself to say about the matter at all is that Minnesota, at least, has truly private discipline and, therefore, the name of the lawyer disciplined is not obvious and public, which is why the case is styled In re Charges of Unprofessional Conduct.

Here’s the quick and dirty description of the scenario:  son-in-law, a Colorado lawyer, is contacted by his mother-in-law and father-in-law about a small judgment (less than $2500) entered against them and trying to help negotiate a better outcome as to its satisfaction.  In-laws live in Minnesota, owe money to a creditor who got the judgment in Minnesota, and the creditor is being represented by a Minnesota lawyer.  Colorado lawyer agrees to handle and then proceeds to have relatively extensive email communication with the Minnesota lawyer for the judgment holder.

Eventually, that Minnesota lawyer filed a bar complaint against the Colorado lawyer, and the Colorado lawyer was found to have engaged in the unauthorized practice of law in violation of Minnesota RPC 5.5(a).  Minnesota’s version of that rule looks pretty much like the ABA Model so the explanation doesn’t lie in some local variation.  Instead the explanation is mostly that this was regulation for regulation’s sake.

If you want to read the rationale of the Minnesota court, you can read the full opinion, at the link above.  There was a dissent – which is the source of the quoted language in the title of the post.  I can find fault with much of what the majority opinion offers as analysis, but what I’d rather talk for a moment about is how this outcome feels emblematic of a much larger problem in terms of the approach to regulation of this issue.

The Colorado lawyer argued that a number of the various exceptions set out in Minnesota’s RPC 5.5 ought to serve to protect what he did from being a violation but he also, quite understandably, argued that he was not practicing law in Minnesota at all because he was sitting in Colorado at all times.  The Minnesota court was having none of it as to that argument because the clients being represented were in Minnesota, and the matter was characterized as a Minnesota matter.  And there is some logic to that conclusion.

But, here’s the thing, I suspect Minnesota pursues a “cake and eat it too” approach on this issue.  When the facts are flipped around a bit, I worry that Minnesota wouldn’t hesitate to also conclude that a Colorado lawyer would be engaged in unauthorized practice in Minnesota if, while working out of an office in Minnesota, the Colorado lawyer only engaged in representation of Colorado clients in Colorado litigation.  Now, if it were just a temporary situation, like say a week-long vacation to the Mall of America or to visit his in-laws, then there probably would be no problem for the Colorado lawyer.

But, if the Colorado lawyer had moved to Minnesota because his spouse got a new job there because she wanted to be closer to her parents, then I’d venture a guess that Minnesota regulatory bodies would be willing to impose discipline against the Colorado lawyer premised on the notion the Colorado lawyer could not have that kind of systematic, continuous presence in Minnesota for the practice of law and that it would not matter that the Colorado lawyer was only handling matters remotely in a jurisdiction in which he fully licensed.

And that, at least to me, is emblematic of the scope of the problem.  I tend to think that neither situation should be treated as unethical UPL.  I acknowledge reasonable minds can differ on that opinion.  I’m not as inclined to offer up a reasonable minds can disagree approach though to the idea that a state should be able to conclude that both versions are a problem.  At most, a state should have to choose only one of them as being out of bounds.