If you are representing someone in another state, make sure there is local counsel and their firm has a licensed attorney in that state.

If a client from out of state comes to me and I have local counsel or one of the lawyers in my firm is licensed in that state, can I meet with the client and take on the representation with the understanding I will be admitted pro hac vice at the appropriate time if there is litigation?

Samuel C. Stretton.

The question is an interesting one. The bottom line is that if a lawyer is representing someone in another state and a lawyer is not licensed in that state, then the lawyer could face the charge of unauthorized practice of law. But if the lawyer has a local counsel in that state and works with that counsel and if it's understood, the lawyer will move to be admitted pro hac vice if the case has to be placed in litigation, it does not appear there would be anything wrong with the lawyer meeting with the client, discussing the case and agreeing to take on the case in conjunction with local counsel.

This is particularly true if the lawyer's law firm has lawyers or partners who are licensed in that particular state.

The issue is an interesting one because there's not a lot of clarification on it. Some states, such as Delaware, are particularly hard on lawyers who aren't licensed in Delaware, but are representing clients in Delaware. If a lawyer doesn't have local counsel and doesn't cross their t's and dot their i's, the Unauthorized Practice Committee down in the state of Delaware is very active and Pennsylvania lawyers have received suspensions for the unauthorized practice of law in Delaware with resulting reciprocal discipline in Pennsylvania.

Some on the Disciplinary Counsel believe that if a lawyer is not licensed in another state, they can't talk to a potential client from that state. That by itself in their mind would constitute the unauthorized practice of law. That view would appear to be wrong and misguided.

But, if that view is what is expected of Pennsylvania lawyers, then the practice of law is going to radically change. Major firms that have lawyers licensed in various states, where a certain partner is giving advice to a client in a different state but that partner is not licensed in the other state, although one of their associates or partners are, is going to have a problem. If the only time you can speak to or begin representation of someone in another state is to be formally moved pro hac vice, that creates a real issue. This writer has represented lawyers in the past in New Jersey and in Delaware. This writer is not admitted in those states. This writer moves for admission pro hac vice. But before he does that, this writer meets with the client, discusses the case, works out a fee arrangement and then moves pro hac vice through a local attorney. If these early conversations or meetings are going to result in the unauthorized practice of law allegation, then there are a lot of attorneys who are no longer going to practice. That could effectively stop the practice of many major firms. It would also stop the practice of seeking good lawyers in Pennsylvania who then get admitted pro hac vice in the other state.

In Pennsylvania Rules of Disciplinary Enforcement, Rule 217(j), deals with a suspended or disbarred or administratively suspended lawyer who then wants to act as a paralegal. Under those circumstances where a person doesn't have their law license, the suspended lawyer is very limited in what they can do as a paralegal and that's set forth in detail in that rule. For instance, the lawyer has to register with the Disciplinary Board. A suspended lawyer cannot have contact with a client as a paralegal unless the supervising lawyer is present or unless the suspended lawyer is calling just as an administrative matter such as to set up a meeting or deposition. But those rules are for suspended or disbarred lawyers who act as paralegals. The rule does not apply to a licensed lawyer who is just not admitted in another state even though their partners are, where that lawyer is going to represent someone and at the appropriate time move for pro hac vice admission. Rule 217(j) does not apply because the lawyer is not suspended or disbarred.

The practice of law is truly becoming a national practice. Although there is still a great advantage of having local state admissions, the reality of the practice of law is that lawyers cross the state boundaries all the time to represent clients. Lawyers gain knowledge and expertise in certain areas that are applicable whether the actual representation is in Pennsylvania where the lawyer is licensed or in another state where the lawyer is not licensed. But if the lawyer has local counsel or partners who are licensed in that state and when there is litigation moves pro hac vice, that appears to be an appropriate way to handle out-of-state clients without triggering the unauthorized practice of law rules. If that is not the case, there is going to have to be some real notice to the bar so everyone can adjust to the practice accordingly.

Therefore, if one is representing someone in another state, make sure there is local counsel and their firm has a licensed attorney in that state. Work with that person and if there is going to be litigation, then move to be admitted pro hac vice. Be sure to comply with the pro hac vice rules. For instance, some states, such as Delaware, do not allow a pro hac vice lawyer to sign any of the documents even when they are admitted.

Hopefully there will be clarification of this issue because the Pennsylvania Rules of Professional Conduct in Rules 5.4 and 5.5 don't truly answer this question. The practice of law has changed and the practice of law is far different than it was 50 or 60 years ago when one couldn't even practice in another county in Pennsylvania without having a local counsel.

Review Rule 1.7 and the basic conflict of interest analysis if you're serving as an intermediary.

When I was a younger attorney, at times I would act as an intermediary between family members or two persons trying to resolve the issues. I thought there was a rule on that in the Rules of Professional Conduct. Can I still do so?

There used to be a rule titled “Intermediary.” It was found in Pennsylvania Rule of Professional Conduct 2.2. That rule was deleted a number of years ago. If one looks at the Rules of Professional Conduct, under Rule 2.2, it just has the word “Reserved.”

There really was no longer a need for that rule because the general conflict of interest rule should be applicable and one should not have a separate rule about acting as an intermediary between clients or people. The basic conflict of interest rule under Rule 1.7 should apply, in the comments to Rule 1.7, Comment 32. That comment reads as follows: “When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role is not that of a partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions then when each client is separately represented. Any limitations on the scope of representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation.”

The rule cites Rule of Professional Conduct 1.2(c). Rule 1.2(c) which is in the scope of the representation rule allows a lawyer to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Therefore, there is no longer a need for an intermediary rule, but there is a need for every lawyer to understand that if one is playing the old role of intermediary between clients, the lawyer should be well aware of the conflict of interest rules and the ramifications. Comment 32 to Rule 1.7 helps to define that.

If a lawyer is playing an intermediary, the lawyer is not going to be representing either of the parties later if there is no agreement.

Therefore, if the lawyer is acting as an intermediary, which is a nice way of saying perhaps common representation, the lawyer should review Rule 1.7 and the basic conflict of interest analysis of the former intermediary role.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.