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Illinois Firm Can't Include Non-Illinois Lawyer Who's Often There in Person or Electronically

Wednesday, April 18, 2012

Illinois State Bar Ass'n Comm. on Professional Ethics, Op. 12-09, 3/12

Key Guidance: A lawyer not admitted in Illinois may not practice regularly in an Illinois firm, either physically or virtually, even if an Illinois partner supervises the lawyer's work for Illinois clients.

Significance: Makes clear that despite some latitude for multijurisdictional practice, lawyers must still practice primarily in the states where they are admitted.

By Joan C. Rogers

A non-Illinois lawyer may not practice primarily in Illinois, either physically or via electronic means, in a firm that the lawyer co-owns with an Illinois attorney, the Illinois bar's ethics committee advised in March (Illinois State Bar Ass'n Comm. on Professional Ethics, Op. 12-09, 3/12).

The non-Illinois lawyer would be engaged in the unauthorized practice of law, the committee decided, even if the Illinois lawyer supervises the lawyer's work for Illinois clients and both lawyers accurately disclose their state of admission. Practicing from a virtual law office does not cure the UPL problem, the opinion makes clear.

Regular Practice in Illinois Firm
The scenario in the opinion involves two lawyers who wish to establish and co-own a law firm in Illinois. One of them is licensed only in another state. Both live and primarily work in Illinois.

The Illinois-licensed lawyer will have direct supervision and ultimate authority over matters involving Illinois clients. The lawyer licensed elsewhere will interact with Illinois clients and advise them, but the Illinois lawyer will sign all Illinois court filings, make all Illinois court appearances, and conduct all Illinois real estate closings.

The lawyer licensed in another state will market himself in Illinois as an attorney, but he will take steps to prevent potential clients from getting the impression that he is licensed in Illinois.

All letterhead and business cards will correctly indicate where the lawyers are licensed, and both lawyers promise to make sure, when taking on new business, that the client knows the attorney licensed in another state is not admitted in Illinois. Retainer agreements will include disclosures in bold type on this point.

Systematic and Continuous Presence
The committee concluded that by practicing in this arrangement, the non-Illinois lawyer would be engaging in unauthorized practice under Illinois Rule of Professional Conduct 5.5(b)(1), which forbids a lawyer who is not admitted in Illinois to “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law” except as authorized by professional conduct rules or other law.

“In the context of a virtual law office involving lawyers from different states, each lawyer should take care that any out-of-state practice is not systematic and continuous.”

Illinois Ethics Op. 12-09

Because the non-Illinois lawyer would be working primarily in Illinois, he would have a systematic and continuous presence in Illinois, the committee pointed out.

“While multijurisdictional law practices are allowable and not uncommon, it is expected that lawyers in such arrangements will practice primarily in their respective states of admission,” the opinion states.

“The promulgation of Rule 5.5 was intended to reflect the realities of multijurisdictional practice by clarifying the circumstances under which it would be allowed, but it was not intended to modify the familiar understanding among American lawyers 'that they may not open a permanent office in a state where they are not licensed,'” the committee stated, quoting from the 2002 report of the ABA Commission on Multijurisdictional Practice.

No Way Around It
The proposed practice would still entail unauthorized practice even if the firm has a virtual office and its correspondence identifies the lawyers' licensing states, the panel added.

A lawyer's presence in a jurisdiction may be systematic and continuous even if the lawyer is not physically present there, it advised, citing Comment [5] to Rule 5.5 and Ohio Supreme Court Ethics Op. 2011-2, 27 Law. Man. Prof. Conduct 659 (2011).

Moreover, the committee said that even if the firm's virtual office were not based in Illinois, the non-Illinois lawyer would establish a systematic and continuous presence in Illinois by doing work for clients and seeking legal work in Illinois.

“In the context of a virtual law office involving lawyers from different states, each lawyer should take care that any out-of-state practice is not systematic and continuous,” the opinion advises.

The committee also concluded that the non-Illinois lawyer's accurate disclosure of the actual state of admission would not get around the UPL prohibition. While Rule 5.5(b)(2) prohibits lawyers not admitted in Illinois from holding themselves out as Illinois lawyers, Rule 5.5(b)(1) prohibits systematic and continuous presence independent of the lawyer's statements about his bar admission, the committee explained.

Nor would the UPL violation be avoided, the committee said, by the Illinois lawyer's supervision and personal attendance at court hearings and real estate closings. The practice envisioned by the non-Illinois lawyer would not fit within any of the exceptions in Rule 5.5(c) (temporary practice in discrete matters) or 5.5(d) (in-house counsel and federal practice), the panel found.

By practicing primarily in Illinois, the committee observed, the non-Illinois lawyer would be subject to discipline not just in his home state but also in Illinois. Rule 8.5(a) indicates that Illinois has disciplinary authority over lawyers not admitted in Illinois if they provide or offer to provide legal services in the state, it said.

Moreover, the Illinois lawyer would be assisting unauthorized practice in violation of Rule 5.5(a), the committee observed.


Full text at http://www.isba.org/sites/default/files/ethicsopinions/12-09.pdf.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.

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