The ABA Center for Professional Responsibility Working Group on ABA Model Rule of Professional Conduct 5.5 (MRPC 5.5) is requesting public comment on an Issues Paper it developed regarding possible regulatory implications associated with exploring possible amendments to MRPC 5.5 to increase permissible cross-border practice.
The Working Group is currently in the early stages of its work in “determining whether and how to amend MRPC 5.5,” which deals with the unauthorized practice of law and multijurisdictional practice of law.
Comments are requested by March 1, 2024, and should be emailed to Natalia Vera at Natalia.vera@americanbar.org.
What is prescribed in MRPC 5.5?
ABA MRPC 5.5 deals with the unauthorized practice of law and the multijurisdictional practice of law. MRPC 5.5(a) provides that, “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” Read MRPC 5.5 here.
The Issues Paper notes that the Rule originally appeared in the ABA Model Code of Professional Responsibility and has been reiterated by the ABA over time, “in the 1983 Model Rules of Professional Conduct in MRPC 5.5(a) and later in amendments to the Model Rules that created certain instances where lawyers could practice in a jurisdiction where they were not licensed without engaging in the unauthorized practice of law (UPL).”
For reference, here is a link to the Illinois Rules of Professional Conduct Rule 5.5.
Why are possible amendments to MRPC 5.5 being explored?
In the Issues Paper, David Majchrzak, Chair of the ABA Working Group, writes:
The ABA has long advanced and, when appropriate, proposed amendments to its Model Rules of Professional Conduct (MRPC) and other professional regulatory policies to ensure that they align with the changing nature of law practice and the delivery of legal services.
Since the last large-scale review of ABA MRPC 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law), technology, globalized legal practice, and client expectations regarding the delivery of legal services have continued to evolve.
In light of these developments, as described further below [in the Issues Paper], questions have arisen as to whether Model Rule 5.5 remains fit for purpose, or whether the reality of 21st-century legal practice and delivery of legal services merits changes to the current manner in which multijurisdictional practice is permitted.
Who can comment?
Public comment is sought from ABA entities, courts, bar associations (state, local, specialty, and international), individuals, and entities.
The ABA notes that “the goal is an active exchange of ideas” and asks that responses include reasoning as well as an expression of agreement or disagreement with the question.
What types of questions are asked?
Questions in the Issues Paper focus on issues like competency, lawyer discipline, client protection funds, Interest on Lawyers Trust Accounts (IOLTA), lawyers’ professional liability insurance, CLE requirements, and professionalism standards.
For example, here are two questions asked in the Issues Paper:
- Question: Given that 39 states, D.C., and the Virgin Islands require applicants to pass the Uniform Bar Exam for admission, and that the minimum score for passing the multi-state bar exam diverges by only 12 points in these jurisdictions, should we assume that lawyers who take and pass that exam are competent to practice anywhere? If yes, why? If not, please explain.
- Question: Should the lawyer providing legal services on a temporary basis in a jurisdiction that has adopted enforceable professionalism standards or standards regarding mandatory or voluntary fee dispute resolution be subject to the rule of the jurisdiction in which those services are provided? Please explain your reasoning.
How will providing comment impact possible amendments to MRPC 5.5?
According to the Issues Paper, public comments will help the Working Group and Center Standing Committees in “determining whether and how to amend MRPC 5.5.”
How do I weigh in?
The Working Group asks that you review the Issues Paper, which includes a history of MRPC 5.5, an overview of the work leading up to the Issues Paper, a proposal from the Association of Professional Responsibility Lawyers for a Revised Model Rule 5.5, and specific questions on which the Working Group is seeking input.
If you would like to submit comments, please email them to Natalia Vera at Natalia.vera@americanbar.org by March 1, 2024. Please note that written comments may be posted on the Center for Professional Responsibility’s website.
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