February 22, 2019
An out-of-state lawyer who moves to Michigan and applies for admission to the State Bar of Michigan may continue to practice law in the jurisdictions where the lawyer is already licensed while the lawyer’s State Bar of Michigan application is pending.
References: MRPC 5.5(b)(1), 5.5(c), 5.5(c)(4); MCL § 600.916
A lawyer is relocating from another state to Michigan. The lawyer currently works for an out-of-state law firm, is licensed and remains in good standing in two other jurisdictions and has applied to become a member of the State Bar of Michigan.
While that application remains pending before the Board of Law Examiners (BLE), the lawyer wants to continue working remotely from Michigan for the lawyer’s out-of-state law firm. The lawyer will provide legal services only for client matters in the two jurisdictions where the lawyer is already licensed to practice law. Neither of those jurisdictions prohibits the lawyer from providing legal services remotely. If the lawyer’s application to the State Bar of Michigan is approved, the lawyer will be licensed to handle client matters in Michigan. If his application is denied, the lawyer will cease practicing law here.
The lawyer now asks whether this proposed arrangement violates the Michigan Rules of Professional Conduct (MRPC) prohibiting the unauthorized practice of law.
Because the lawyer will only be providing temporary legal services in Michigan that are reasonably related to the lawyer’s practice in other jurisdictions, the proposed arrangement is permissible under the MRPC. A lawyer who is not admitted to practice in Michigan is prohibited from "establish[ing] an office or other systematic and continuous presence in this jurisdiction for the practice of law." MRPC 5.5(b)(1); see also MCL § 600.916. This prohibition, though, does not apply to an out-of-state lawyer who wishes to "provide temporary legal services" in Michigan that "arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice." MRPC 5.5(c)(4).
The lawyer’s proposed arrangement fits that description and therefore does not run afoul of the Michigan prohibition on the unauthorized practice of law. The lawyer’s provision of legal services as an out-of-state attorney in Michigan is "temporary," because it will end when the BLE finishes processing the lawyer’s application and decides whether the lawyer should be admitted to the State Bar of Michigan. If the lawyer is denied admission, his provision of legal services from Michigan will cease entirely. If the lawyer is granted admission, the lawyer will no longer be an out-of-state attorney providing services only in other jurisdictions; instead, the lawyer will be licensed to practice in Michigan. So unlike a more indefinite or permanent arrangement, such as the establishment of a physical office, the lawyer’s provision of legal services under the proposed arrangement has a predefined, short-term endpoint: the BLE’s decision on the lawyer’s bar application.
The commentary to Rule 5.5 supports treating the proposed arrangement as only "temporary." The commentary explains that legal services may be considered "temporary" even if they occur "on a recurring basis or for an extended period of time." MRPC 5.5 cmt. The key inquiry is whether the legal services in Michigan have a predefined, short-term endpoint, such as the end of "a single lengthy negotiation or litigation" or some other discrete block of time. Id.; see also Black’s Law Dictionary (10th ed. 2014) (defining "temporary" as "[l]asting for a time only" or "existing or continuing for a limited . . . time").
The contemplated legal services here also satisfy Rule 5.5(c)(4)’s remaining requirements. The lawyer is admitted "in another jurisdiction"—two of them, in fact. MRPC 5.5(c). The lawyer’s current practice involves working on client matters in those other jurisdictions, and the lawyer will continue working only on client matters in those other jurisdiction. So the contemplated legal services "arise out of or are reasonably related to" the lawyer’s current practice. MRPC 5.5(c)(4).
The proposed arrangement not only complies with the letter of Rule 5.5(c)(4), but also satisfies its purpose. The central reason for prohibiting the unauthorized practice of law "is to protect the public from untrained legal counsel and incorrect legal advice." Grier v. Sunshine Auto Collision Inc, No. 273297, 2007 WL 4126663, at *6 (Mich Ct App Nov 20, 2007). Rule 5.5(c) is thus designed to permit temporary legal services "under circumstances that do not create an unreasonable risk to the interests of clients, the public, or the courts." MRPC 5.5 cmt. The proposed arrangement squares with that purpose. It will not create any risk to the public or the courts, because the lawyer will not be working on Michigan client matters or holding himself out as being licensed in Michigan. And the proposed arrangement will not create any risk to clients, because the lawyer will only be working on client matters in the jurisdictions where the lawyer is already licensed. The lawyer has already been working on those matters; all that has changed is the lawyer’s physical location. In short, this resembles nothing more than a short-term telework arrangement—a far cry from what the unauthorized-practice-of-law rules are intended to prohibit.
The Ohio Supreme Court recently reached the same conclusion in In re Jones, 2018-Ohio-4182 (Oct 17, 2018). There, the attorney was licensed in Kentucky and "practiced law exclusively in matters related to pending or potential proceedings before tribunals in Kentucky." Id. ¶¶ 3–4. The lawyer began working on those Kentucky matters from her law firm’s office in Ohio while the lawyer’s application to the Ohio bar was pending. Id. As here, the attorney was only "providing services on a temporary basis," because those services would "continue only until [her] application [to the Ohio bar was] resolved." Id. at 20; see also Id. at 21. And as here, the attorney was only handling client matters in the state where the lawyer was already licensed to practice law. Id. at 21. On those facts, the Ohio Supreme Court held that the attorney’s arrangement was permissible under the Ohio Rules of Professional Conduct, relying on language that mirrors MRPC 5.5(c)(4). Id. at 2, 14–23. That reasoning applies equally here.
Further, as Jones indirectly suggests, our reading of Rule 5.5(c)(4) avoids the constitutional concerns that might otherwise result from prohibiting the lawyer’s proposed arrangement here. When "choosing between competing plausible interpretations" of a rule, it must be presumed that the drafters "did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez, 543 US 371, 381 (2005). In Jones, three concurring justices on the Ohio Supreme Court would have held that the Ohio Rules of Professional Conduct violated the Fourteenth Amendment’s Due Process Clause if they prohibited the attorney’s legal services there. In re Jones, 2018-Ohio-4182, 23–47 (DeWine, J., concurring in the judgment only). Our interpretation of MRPC 5.5(c)(4) avoids raising those "serious constitutional doubts." Clark, 543 US at 381.
An out-of-state lawyer who moves to Michigan and applies for admission to the State Bar of Michigan may continue to practice law in the jurisdictions where he is already licensed while the lawyer’s State Bar of Michigan application is pending.