A rose may be a rose but UPL does not always mean the same thing as UPL.

So, you likely have read about or stumbled into something on the web about the remarks offered by the founder of Avvo at the ABA Meeting.  If you somehow missed having that hit your radar screen at all, you can read about it (and snippets of the remarks of the other folks who gave similar Ted-talk-styled remarks at the ABA Journal online) here.  (And, you ought to read all of the comments as they are as interesting/revealing as the story itself.)

The tl:dr version is that Avvo’s founder suggested that if the legal profession wanted to “innovate” and promote access to justice it should “get rid of UPL.”  If you’ve now spent the time reading all of the comments posted on the article, you’ll see that got at least few people pretty riled up by that and don’t have much to say about any of the other talks detailed in the piece.  Unsurprisingly, analogies were quickly offered up with the practice of medicine and whether it would be seen as “innovative” to allow anyone off the street to practice medicine, etc.  Universally, it seems that the reference to  “UPL” made by the speaker is being treated as saying that we should permit non-lawyers to practice law and, perhaps it was.  But there are two separate and distinct categories of things that both fall under the terminology of “UPL,” and I think it worth remembering the distinction in this context.  In addition to referring to the practice of law by a nonlawyer as UPL, we also refer to the practice of law by a lawyer in a jurisdiction other than the one in which she is licensed as UPL as well.

These are usually situations governed by completely separate regulatory entities and approaches.  For example, in Tennessee, UPL of the first variety can be by the state Attorney General’s office and is governed by a statute that makes the commission of the offense a crime.  UPL of the second variety (though there is nothing explicitly in Tennessee statutes saying it cannot be taken up by the AG’s office) is addressed by the Tennessee Board of Professional Responsibility in the form of potential disciplinary proceedings against the person for violations of RPC 5.5.

I tend to find that lawyers generally are more attuned these days to risks regarding cross-border practice.  I know and have encountered quite a few lawyers who take a very risk-averse approach to the topic by questioning whether they can represent a client in a dispute in state Y when they are only licensed in state X or whether they can advise a client about state Z’s laws when they are only licensed in state X.  Obviously not all lawyers are attuned to the risk or risk averse as we’ve seen in two cases getting some publicity this month – the first is only in part a story about UPL as the disbarment order visited upon an attorney who served as managing partner of a Maryland law firm without being licensed in Maryland is as much about fees charged to clients when no work was performed, trust accounting violations, lack of competence, and failure to supervise others in the firm as it is about the fact that the lawyer was only licensed in jurisdictions other than Maryland.  (And, yes, a lawyer can get disbarred from a jurisdiction in which they were never licensed in the first place.  That is a thing.)   The second appears to be a purely UPL issue involving two brothers who have been running a Rhode Island firm for almost two decades without being licensed in Rhode Island.  Both of the situations though do reveal that enforcement of restrictions on UPL by lawyers is obviously not the highest priority of state bar regulators.

And, in part, that is as it should be.  The restrictions on UPL exist in order to protect the public from harm.  The now disbarred Maryland lawyer harmed the public quite a lot.  The brothers in Rhode Island ended up on the radar screen for discipline when a former client filed a complaint about a claimed blown statute of limitations.  There are likely quite a few lawyers across the country who have undertaken conduct involving cross-border practice that was arguably UPL but they provided good services to satisfied clients and no problem was ever surfaced or examined.

I think the idea that the legal profession would simply drop all opposition to the practice of law by those who are not licensed anywhere in the name of innovation is a nonstarter.  It also isn’t likely something that would be seen as advancing access to justice.  Though, as I’ve highlighted here in a number of posts, approaches such as the creation of Limited License Legal Technicians (“LLLTs”) does appear to have some momentum.   But, if we’ve reached the point that geographical restrictions on the practice of law by lawyers are causing harm to the public’s interest and that aspects of what is spoken of as the justice gap in the U.S. might be remedied by making it easier for under-served populations to secure legal services from lawyers licensed in another jurisdiction, then couldn’t that actually be an innovation worthy of real consideration?

And, for what it is worth, such an innovation might actually be better described as just more incremental change.  Many states (like Tennessee) already recognize this principle when natural disasters strike by having passed revisions of recent vintage to their rules to permit lawyers to travel to a state struck by disaster and provide legal services despite not being licensed in the state in need of the services.

 

Problems of UPL are nothing new, but UPC?

I’ve written a good bit over the last few months about a variety of issues related to problems involving unauthorized practice of law issues for lawyers licensed in at least one jurisdiction.  Tennessee still has the pending petition filed by the Board of Law Examiners that should result in some form of practice pending admission rule that will eventually lessen instances in which lawyers coming to Tennessee might unwittingly find themselves at risk of being treated as having engaged in UPL.  I look forward to providing some additional information about events impacting that proposal in the coming weeks.

In the meantime, here is another reminder of the ways in which lawyers can not only find themselves running afoul of ethics rules through cross-border practice.  This lawyer’s situation is not one where the practice was at all occasional, as the record indicated that settling insurance claims for clients in Delaware was 10-15% of this practice during the periods in question.  His problem was that he was only licensed in New Jersey and Pennsylvania.  His problems are also a reminder that, through reciprocal discipline mechanics, this kind of misconduct can result in multiple hits of discipline, even including jurisdictions where you were never licensed in the first place.  The good news for this particular New Jersey-based lawyer is that he’s now been reinstated in Pennsylvania, one of two jurisdictions where his privileges to practice law were suspended as result of his unauthorized practice in Delaware.

In modern practice, wrestling with whether conduct is UPL under a jurisdiction’s version of RPC 5.5 can be tricky.  Deceptive use of UPC codes to save money on wine is an altogether different kind of tricky though.  That was part of the dishonest conduct leading to this Ohio lawyer making news for a two-year suspension arising out of stealing wine and then misleading disciplinary authorities about it.  Other than being a bit bizarre, this offers an effective reminder that RPC 8.4(b) and (c) extend in reach to acts by lawyers outside of the context of their representation of a client.  It’s also a reminder for lawyers that the reach of disciplinary proceedings can extend quite far back into your past.  In this instance, the lawyer ended up on the radar screen because, after getting arrested for the last of a series of a half-dozen incidents of swapping out the UPC codes on bottles of wine to pay much less at checkout for the product, the lawyer made a self-report about the conduct.  Unfortunately, the self-report came across as more self-serving and didn’t disclose everything the disciplinary authorities considered germane.  Thus, the order imposing the suspension the fact that the same lawyer had also eleven years earlier been arrested for just trying to shoplift 12 bottles of wine from a large grocery store chain and that the lawyer didn’t disclose this fact in making the report.

Vino?  Yes.  Veritas?  Not so much and that was the problem.

More on the BLE’s petition for rule changes

This will be the first of several more in-depth entries focused on the Board of Law Examiners’ petition seeking some changes to Tenn. Sup. Ct. R. 7, which deals with a collection of licensing issues in Tennessee.  (This will also be one of those less frequent posts where I may not adhere strictly to my commitment to tell you what you need to know in a bite-sized portion requiring 6 minutes or fewer of your time.)

One of the two headline changes proposed in the petition is the creation of a new amnesty period for in-house counsel registration.  If adopted, Section 10.04 of Rule 7 would be amended to provide that any in-house counsel not currently licensed or properly registered in Tennessee would have another 180 days from the date the rule change is adopted to put in the proper paperwork to obtain a registration license.

Some background of note: it has now been almost 13 years since the Tennessee Supreme Court made clear that a lawyer who was working as in-house counsel for a company based in Tennessee needed to be licensed to practice law in Tennessee.  Crews v. Buckman Labs, 78 S.W.3d 852 (Tenn. 2002).  Despite that state of affairs, in 2009, it was known that there were many in-house counsel not in compliance and revisions to Rule 7 and to RPC 5.5 were adopted effective Jan. 1, 2010 that would permit in-house counsel licensed in another jurisdiction to obtain a registration license under which they would only be permitted to represent the company that employed them but would not have to otherwise become fully licensed.  In order to make it easier for in-house lawyers already in Tennessee to get into compliance, those folks were given 180 days from adoption of the new rule to get their paperwork in and have their past transgressions absolved.  These new rules also provided that, for in-house counsel coming to Tennessee in the future, they would have 180 days from the date they commenced their employment to get their application papers in for the in-house registration certificate.

Well, fast forward to the present day and for a variety of reasons, there are again quite a few in-house counsel in Tennessee who did not get their registration paperwork in within 180 days of commencing employment with a company in Tennessee.  Some of the most sympathetic examples are lawyers who wanted to become full members of the bar and who submitted applications to be fully admitted by comity, not realizing that such applications were likely doomed because there was no corresponding 180-day grace period for that process.

Thus, faced with this situation in which there are quite a few in-house counsel who are gainfully employed by corporations in Tennessee that very much want these people to be their lawyers, the BLE has made this proposal that would give those folks a new 180-day window to turn in registration license paperwork and have their past transgressions absolved.  I expect that this aspect of the BLE’s petition will be met with widespread support.

This proposal also contains two further things of note.  The first is the BLE’s insistence that they will make positive efforts to educate in-house counsel on this situation and about the need to get the paperwork in within 180 days.  The second is the proposal to move existing language from Comment [17] to RPC 5.5 up into the black-letter as a new RPC 5.5(d)(3).  Simultaneously, an additional sentence is proposed that would go some distance in making clear that, for in-house counsel, there really is no other choice (if sitting for the bar examination is not desirable) than to first obtain a registration license and then, if something more is desired, to seek to get full admission by comity.