If one is licensed only in federal court, you cannot give advice on state issues in a Pennsylvania office.

I practice immigration law solely. I am licensed in federal court, but do not have a Pennsylvania law license. I have a law office near the federal courthouse and I do immigration matters regularly in immigration court and when appeals if necessary, in federal court. Am I allowed to have a Pennsylvania office?

Samuel C. Stretton.

The question is a very interesting one because Pennsylvania Rules of Professional Conduct, Rule 5.5(b), states the following: "A lawyer who is not admitted to practice in this jurisdiction shall not accept as authorized by Rule Pa. Bar 302 or other law establish an office or other systematic and continuous presence in this jurisdiction for the practice of law or hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction."

That rule seems to suggest if you are not licensed in Pennsylvania courts, you can't have an office for the practice of law in Pennsylvania.

On the other hand, it seems logical one would be allowed to practice or have a law office handling immigration or bankruptcy or other aspects in federal court if they are licensed in federal court, even though they are not licensed in state court. The confusion arises because of the case Office of Disciplinary Counsel v. Marcone, 855 A.2d 654 (Pa., 2004). Frank Marcone, who at one point had been a brilliant criminal defense lawyer, had, unfortunately, been suspended in Pennsylvania but still had his federal license to practice law. Marcone then opened a law office in Media for the purpose of practicing federal law only. Because he was a suspended lawyer, it was a little more complicated because Pennsylvania Rules of Disciplinary Enforcement, Rule 217(j), prohibit a lawyer from practicing law and also greatly limit what a suspended lawyer can do as a paralegal. Also, under Rule 217(j), a lawyer cannot be involved in law-related activity. The Pennsylvania Supreme Court precluded Marcone from having a federal office. The court indicated Marcone could appear in federal court and try cases. The Supreme Court was concerned if Marcone had a law office in Pennsylvania, the court could not police him and was concerned he would cross the line by giving advice on Pennsylvania law-related matters.

Several years later, Bob Surrick, who was well known at that time, was suspended from the practice of law and filed a civil rights action against chief disciplinary counsel seeking to open an office to practice law in Pennsylvania for the sole purpose of doing a federal law practice since he was suspended in Pennsylvania. Surrick brought the federal suit because of the aforementioned Marcone decision.

Surrick was successful with the U.S. Court of Appeals for the Third Circuit recognizing that permission to practice federal law is an entirely separate process than admission to practice law in Pennsylvania. The Third Circuit found there was a preemption of the Pennsylvania rules prohibiting a law office because the federal court had the exclusive authority to decide who practices law in federal court. The Third Circuit in the Surrick case then held that there was a preemption and Surrick could have a law office limited to only practicing federal law. This was an odd decision because the circuit court made it very clear that they were not overruling the aforementioned Marcone case. The court felt only the U.S. Supreme Court could do that. The case is cited as Surrick v. Killion, 449 F.3d 520 (Third Circuit, 2006).

In reading these cases, it appears Surrick's case controls the question as written and would allow the lawyer to have that bankruptcy or federal court practice law office. It is assumed that the question doesn't have the additional burden as Marcone and Surrick did as being suspended in Pennsylvania.

The problems presented by the Marcone and Surrick cases were later lessened because federal court admission rules were changed which, in essence, now require admission to Pennsylvania before being admitted in federal court except for certain exceptions.

It should be noted the Pennsylvania Board of Law Examiners now have specific rules for foreign lawyers or a general counsel coming into Pennsylvania for a limited practice. These rules have to be complied with and they would allow a limited presence, for instance, for a general counsel or corporation that is licensed in another state, but not Pennsylvania. But woe to that general counsel who is licensed in another state and comes to Pennsylvania as general counsel for a corporation, but does not comply with the limited license rule. That lawyer, if discovered, could be charged with the unauthorized practice of law which could result in six months to several years of suspension from the practice of law.

In this modern age the unauthorized practice of law, particularly in Pennsylvania, is dealt with very harshly by the Office of Disciplinary Counsel and the Disciplinary Board. Other states, such as New York and New Jersey, have not regularly given suspensions for the unauthorized practice of law except in very severe cases. One always has to be careful if they are doing some sort of limited practice in Pennsylvania to comply with all the rules. Clearly, if one is licensed only in federal court, they don't want to be accused of giving advice to corporations or other clients on state issues in their Pennsylvania office.

People who are not able to afford legal services is a huge problem today.

When I go into domestic court and many times landlord/tenant court, I see many people without counsel. What is the legal profession doing about this?

The problem of persons who can't afford legal services is monumental. It appears, at least in Philadelphia County, a large percentage of persons in domestic cases are unrepresented and act as pro se. In landlord/tenant court, that is often the norm, although recently Philadelphia city council passed a bill providing free counsel to persons unrepresented in landlord/tenant court. How that will be funded, how it will work, and what conflicts will arise remains to be seen.

The question is what is the role of the organized bar? Attempts have been made over the years to provide legal services. Usually this requires federal or state authorities to provide funds for representation or, at least for organizations like Legal Aid or Community Legal Service. But anyone involved with those organizations knows that they are grossly underfunded. Every year they have fundraising campaigns just to try to make their ends meet.

There has always been calls and requests for the organized bar to provide these services on a pro bono basis. Many lawyers do perform quite a bit of pro bono work and do step up to the plate unrequested. The problem is that it's almost impossible to have enough lawyers to handle these problems of persons who are unrepresented.

It's a shame in many ways because the legal profession has grown by leaps and bounds recently. One originally thought that the rapid growth of the legal profession in Pennsylvania would provide the answers to representation for persons who normally could not afford lawyers. The problem is that it's just impossible for private lawyers to do pro bono work on a regular basis. The cost of litigation and time for litigation has gotten too expensive. The increase in costs are not the fault of lawyers.

Going into federal court or doing civil rights cases or trying to do post-conviction hearing relief cases at extremely low court-appointed rates is impossible. A lawyer can't make their overhead if they do more than one or two cases.

There have been discussions about using technology to make up the gap and allowing technology and lawyers who are working through technology to provide assistance to those who can't afford counsel. This also talks about licensing or allowing paralegals and others to perform what would normally be legal work. But doing so gets into the question of the unauthorized practice of law. It also gets into the question of trade issues. Bar associations and other organizations have to take a good hard look at this, but also remember the legal profession needs help also. Many small law firms are having great difficulty in surviving.

There are too many lawyers who cannot make ends meet. It's a combination of too many lawyers out there, high overhead, increasingly more complex law, and very low fee payments.

Perhaps there is another solution. That solution would be to simplify the civil litigation process.  Every lawyer who practices modern civil law knows that it can be extremely time-consuming. It can cost a fortune to hire expert witnesses. Civil discovery is burdensome with electronic discovery and issues and the costs often times far exceeds what a law firm can handle. Perhaps there is a need for a revision of the Federal Rules of Civil Procedure and state Rules of Civil Procedure. Changes could be made for lawyers to represent clients without having to spend days, weeks, or months answering endless motions and doing endless depositions that sometimes last hours and hours and hours. If one could simplify the litigation process and the time and cost of it, the case could get quickly to trial. For many cases, lawyers would be available because people could afford them.

Something has to be done because the legal profession is not able to fulfill its role to represent people. Also, from a trade standpoint, the legal profession is falling apart in many ways.  Philadelphia County is a classic example. Many small firms aren't making it. The modern criminal lawyer, at least in Philadelphia County, where there is a massive nonprosecution of cases and plea offers where the client doesn't have to hire a private lawyer is facing difficult economic times. That's all good, except the private criminal bar is being destroyed. The opportunity to get trial experience is also being greatly reduced.

Obviously, this article is taking a simplistic approach to a very complicated issue. The issue has to be addressed front and center. There is a dire need for lawyers to represent people who are not in a position to pay large sums of money for legal representation whether it is domestic law, criminal law, estates and wills, etc. There is also a need to help the legal profession, which is floundering. There are some firms that have done very well and are to be commended for their skills and abilities. For many small firms, it's just a constant struggle. The end result of that is often seen now by the Office of Disciplinary Counsel of older lawyers who keep practicing when they should have stopped because they are not mentally as quick as they once were. But they can't stop because they never made any money practicing law and never saved enough. This problem with senior and older lawyers who don't know when to stop is going to be more and more of a problem in the legal profession. But it's a symptom of a bigger problem with a profession that can no longer support in many ways the business of being a lawyer.

In reality, these issues effect the entire legal profession. If there cannot be a strong core of lawyers who have adequate trail experience and who have adequate business to gain that experience, then the independence of the legal profession starts to fade. One can be bright and idealistic, but if they don't know how to try a case (and that means many, many trials to get that know now), then there is very little that independent lawyers are going to be able to do in the future to resolve the problems. Major organizations now sometimes do good jobs, but there is nothing better than the small firm taking on a case that they feel strongly about and having the ability to make the changes.  has always been the strength of the legal profession. That strength is slowly disappearing from the scene and being replaced by a big mess.

It's time for the bar associations to really do something on these issues. The legal profession is at a crossroad. The future and direction must be addressed now for the legal profession.

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.