Part of the sabbatical life is being free of daily office visits. That doesn't mean I don't talk to lawyers and others seeking advice daily. It's just that often I'm in a car, truck or airplane, on a beach or on the side of a mountain or highway in running shoes or on a bicycle when the phone rings. This past year I may have engaged in the unauthorized practice of law in 10 or more states this way. In most states, the unauthorized practice of law is a crime. In some, it's a felony. A guy might start to worry.

Thus, I was surprised, and thrilled, when the CBA ethics solons issued Opinion 18-02 covering interstate “federal” practice last year. The decision goes way beyond existing interpretations of the law and pretty much throws out lex loci as a review consideration for unauthorized practice of law (UPL) analysis. Let me explain.

Despite the fact that the practice of law is regulated on a state-by-state basis, courts have recognized that, as a practical matter, lawyers and clients don't exist in limited local bubbles but travel and do business across state lines all day, every day. UPL enforcers (I processed over 450 UPL cases of my own when I was Connecticut's chief UPL cop, so I know a bit about this) have tended to focus on the clients instead of the lawyer, using the clients' situs as the jurisdictional consideration in a UPL prosecution. Our consumer protection commissioner has used the same analysis. After all, the purpose of UPL enforcement is client/consumer protection, not turf protection, so looking at where the most significant effects of the representation are felt seems an appropriate analysis. If the client was in Connecticut, then the lawyer was practicing law here.

When we adopted the Practice Book definition of the practice of law (P.B. 2-44A), we carved out “federal” practice from the definition of authorized/unauthorized practice. This covered both fora where there wasn't a requirement of a law license, such as Department of Labor and federal education benefits practice, and areas where the federal law established its own admission and regulatory regime, such as immigration, tax and patent and trademark work.

In its recent decision, the CBA Ethics Committee went further and adopted a “subject-matter” carve out for “federal” practice. In 18-02, an out-of-state lawyer was inquiring about whether it would be a UPL violation to serve Connecticut clients' needs related to HIPAA compliance. Instead of going to the CBA's Unauthorized Practice Committee, this lawyer went to the Ethics Committee for permission. The committee decided that it wouldn't be unethical for a lawyer to offer Connecticut citizens legal services from out of state as long as the advice and counsel was limited to a matter of federal law.

No one I am aware of had gone that far before, because federal law is often inextricably interwoven with state law. Thus, there's a decision of a Connecticut bankruptcy judge denying legal fees to an unadmitted out-of-state lawyer because bankruptcy law involves both federal and state issues. If there was an issue of whether HIPAA was a “federal only” regime, our Supreme Court resolved that last November in Byrne v. Avery Center for Obstetrics and Gynecology, where it was recognized that the management of personal medical information was regulated both by federal and Connecticut law. I suppose a Connecticut medical provider might want information only about her federal law responsibilities, but that would be silly. The reported judgment in Byrne for violating state law on this issue was over $800,000.

In any event, it's no big jump from “federal only” to “Connecticut only” practice, so if I'm caught practicing in another state, I might raise the 18-02 defense. As a matter of fact, when I bought my Cape Cod pied-à-terre a decade ago, I asked Massachusetts' chief disciplinary counsel whether she was going to arrest me if I spoke with my Connecticut clients from Provincetown. She said that as long as they were Connecticut clients and I was talking about Connecticut law, I was good to go. I hope other states' UPL cops agree.

Yes, as the Ethics Committee notes, the reality is that, for many, interstate practice is more the norm than the exception today. And, yes (with apologies to the late Antonin Scalia), the common law is a flexible and malleable enterprise. It's just that changes to a code system usually come from new rules rather than interpreting decisions. No matter. I'll take any and all safe harbors I can find.

Mark Dubois is on sabbatical. He remains of counsel at Geraghty & Bonnano, where he can be reached at [email protected].