A parting gift from Jonathan Lippman, New York’s recently retired chief judge of the Court of Appeals, was the adoption of Model Rule 5.5, which allows New York lawyers to engage in cross-border practice. The rule, which we have had here for about a decade, allows out-of-state lawyers to follow their cases and clients to New York. Because most states have reciprocal rules, New York lawyers can now also follow their clients to other states, like Connecticut. Unfortunately, I think Rule 5.5 and its “multijurisdictional practice” regime is really a 20th-century answer to a 21st-century problem.
You see, the rule anticipates lawyers physically driving or flying to another venue to pursue a matter. What about the lawyer who never leaves her office, but handles a matter in another state through phone, fax, e-filing and “computer-assisted” communications? Is she engaged in the unauthorized practice of law? Which law applies, that of the venue where she is calling from or where the call is answered? Or maybe, borrowing from choice-of-law jurisprudence, the law of the place where the most substantial effect of her conduct is experienced? All of the above?
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