I know it really hasn’t been that long (a little over two months ago) since I wrote on here to trumpet the APRL proposal for a new ABA Model Rule 5.5. If you missed that, it would help a lot to go read that post first. Here’s a link. I’ll wait right here until you come back.
Hey regular readers! This could get awkward all of us just shoegazing waiting on those folks. Are you following cats being weird little guys on Twitter? If not, go look at a few of those photos to kill the time. Here’s a good starter: https://twitter.com/weirdlilguys/status/1537593869507956737/photo/1
Okay. Now that everyone is back. The strengths of the APRL proposal are again demonstrated by a different development coming out of Michigan that is up for consideration as an amendment to that state’s RPC 5.5.
About six weeks ago, the Michigan Supreme Court put out a proposal for adopting a new 5.5(e) that would provide for better protection for lawyers not licensed in Michigan but who are using computers and the internet to practice law to reside in Michigan. The proposal, which is open for public comment until September 1, 2022, would involve adopting the following language for 5.5(e) and a supporting new paragraph (presumably [22] in the accompanying Comment):
(e) A lawyer admitted in another jurisdiction of the United States and not disbarred or suspended may remotely practice the law of the jurisdiction(s) in which the lawyer is properly licensed while physically present in the State of Michigan, if the lawyer does not hold themselves out as being licensed to practice in the State of Michigan, does not advertise or otherwise hold out as having an office in the State of Michigan, and does not provide or offer to provide legal services in the State of Michigan.
[22?] Paragraph (e) is not meant to infringe upon any authorized practice in the federal courts. See, e.g., In re Desilets, 291 F.3d 925 (CA 6, 2002). In addition, paragraph (e) does not authorize lawyers who are admitted to practice in other jurisdictions to maintain local contact information (i.e., contact information within the State of Michigan) on websites, letterhead, business cards, advertising, or the like.
Now, would this kind of protection added to Michigan’s current Rule 5.5 be helpful for some lawyers? Of course, absolutely. If lawyers currently are at risk in Michigan that working out of a home office, for example, would subject them to a UPL charge for having a continuous and systematic presence in Michigan for the practice of law, then this is certainly an improvement.
But one of the many reasons that the time is right for the much more comprehensive proposal along the lines APRL is advocating is that something like this is nowhere near enough of an improvement.
The first, and most significant, problem with the proposal is that it limits what is okay to practicing “the law of the jurisdiction(s) in which the lawyer is properly licensed.” What exactly does that mean? Does that mean that if the lawyer is licensed in Minnesota, representing a Minnesota client, but the representation involves providing advice about a contract the Minnesota client has entered into with an Iowa manufacturing company will be okay? Or would it only be okay if the contract is governed by Minnesota law? Should anything really turn on that sort of question? Also, what if the contract had a choice of law provision that selected Michigan law? Would this now be entirely off limits?
While the “law of the jurisdiction” trope is the most severe problem, there is at least one other. When the proposed comment attempts to elaborate on the meaning of not being able to hold yourself out as being licensed to practice in Michigan or offering to provide legal services there, it indicates that you couldn’t even have local contact information on letterhead or a business card or a website. So, what if because you live in Michigan, you have a cell phone that has a Michigan area code? Should the answer really be that if a lawyer’s website otherwise clearly indicates they are only licensed to practice in Minnesota but provides a telephone number (a cell number) with a Michigan area code then their conduct is prohibited?
So, to sum up, if Michigan moves forward on this front, it will be an improvement on the status quo, but there are much better, bolder ways to address the overall issue.