Work in One State While Licensed in Another Qualifies as Practice for Admission by Motion

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By Joan C. Rogers  

A New Jersey-licensed lawyer's work as a contract attorney in New York before he was admitted to the New York bar counts as part of the five-year practice requirement for admission on motion in Massachusetts, the Massachusetts Supreme Judicial Court ruled May 10 (Schomer v. Bd. of Bar Examiners, Mass., No. SJC-11327, 5/10/13).

The lawyer's intervening admission to practice in New York indicates that New York did not view his previous work there as unauthorized practice, Justice Francis X. Spina said. To the extent the Massachusetts board of bar examiners believed the lawyer's work in New York was illegal or unauthorized, the board should have consulted its New York counterpart, Spina suggested.

The court rejected the proposition that a bar applicant's work necessarily must be done in a jurisdiction where the lawyer is licensed to qualify as “practice” for the purpose of admission on motion.

More guidance is needed from regulating authorities on the interplay between unauthorized practice and multijurisdictional practice, Spina said.

Contract Attorney in Empire State

In 2004 Jesse D. Schomer graduated from law school, passed the New Jersey bar exam, and was admitted to the New Jersey bar.


“Plainly there is a burgeoning need for clarification of the boundaries of multijurisdictional practice vis-à-vis the unauthorized practice of law.”
Justice Francis X. Spina

From mid-2005 through late 2008, Schomer worked as a contract attorney at Sullivan & Cromwell in New York. In March 2009, he began working as a full-time associate at Newman Ferrara in New York, where he is still employed. In the meantime, he took and passed the New York bar exam and was admitted to the New York bar in October 2009.

Schomer said that at Sullivan & Cromwell he worked on a single federal regulatory matter involving an international bank and multijurisdictional discovery, and at Newman Ferrara he worked only on New Jersey cases before his admission to the New York bar. Before his admission in New York, Schomer did not appear in New York courts or hold himself out as licensed to practice in New York, and he was supervised by New York-licensed attorneys, Spina said.

In 2011 Schomer applied for admission to the Massachusetts bar without taking the bar exam under Supreme Judicial Court Rule 3:01, Section 6.1, which addresses admission by motion for lawyers admitted in the United States. The rule includes this practice requirement:  

The applicant shall have been admitted in another state, district or territory of the United States for at least five years prior to applying for admission in the Commonwealth, and shall have engaged in the active practice or teaching of law in a state, district or territory of the United States for five out of the past seven years immediately preceding the filing of the petition for admission on motion.

 

 

The Massachusetts board of bar examiners decided that Schomer did not qualify for admission on motion because he had not been engaged in the active practice of law in a jurisdiction in which he had been admitted to the bar for five of the past seven years.

The supreme judicial court reversed the board's decision, concluding that Schomer's work in New York counted as creditable practice under the rule even before he was admitted to the bar in that state.

Bar Admission Indicates No UPL

The board contended that the time Schomer spent practicing law in New York before his admission there was illegal because he was licensed in New Jersey only, and thus could not count toward the required five years of practice.

The court acknowledged that New York's unauthorized practice statute, N.Y. Jud. Law §478, makes it unlawful for anyone to practice or appear as an attorney in New York, or hold himself out to the public as being entitled to practice law there, without being admitted to practice in New York. This statute has been applied to lawyers from other jurisdictions in order to protect the public and to ensure that lawyers practicing in New York meet New York's requirements for admission and its ethics standards, Spina said.

The court decided, however, that Schomer satisfied the five-year practice requirement even though his work at Sullivan & Cromwell and part of his work at Newman Ferrara predated his admission to the New York bar.

“[W]e are not prepared to conclude that Schomer was engaged in the 'unauthorized' practice of law where the New York bar has seen fit to admit him to practice, thereby determining that his work at Sullivan & Cromwell and at Newman Ferrara did not constitute a violation of N.Y. Jud. Law §478,” Spina wrote.

Schomer said he fully disclosed the nature of his work at Sullivan & Cromwell during the process of seeking admission to the New York bar, the court noted. Before the Massachusetts board of bar examiners reached the conclusion that Schomer's work in New York before his admission there was illegal or unauthorized, Spina said, “the board should have sought legal clarification of the matter from its counterpart in New York when these proceedings commenced.”

In a footnote, Spina said that “At this time, we do not adopt the board's interpretation of S.J.C. Rule 3:01, §6.1, that an attorney's practice must be physically located in the jurisdiction where the attorney is admitted to the bar in order to be credited toward meeting the active practice requirement.”

Court Pines for Guidance

In another footnote, the court pointed out that unlike Massachusetts and most other states, New York has not adopted a professional conduct rule patterned on ABA Model Rule 5.5(c), which permits a lawyer admitted in another jurisdiction to provide some types of legal services on a temporary basis in the host state.

Spina noted that according to New York State Ethics Op. 835 (2009), Rule 5.5(c) judicially authorizes out-of-state lawyers to practice in a host jurisdiction within the limits set by the rule, and it interprets the conduct authorized by the rule as conduct that does not violate the jurisdiction's statutes and rules against unauthorized legal practice.

“This case highlights the legal and ethical complexities surrounding the multijurisdictional practice of law by lawyers who may not be licensed in every State where they need to work,” Spina said in a footnote, adding: “Plainly there is a burgeoning need for clarification of the boundaries of multijurisdictional practice vis-à-vis the unauthorized practice of law.”

Jesse Schomer, New York, represented himself. Geoffrey R. Bok of Stoneman Chandler & Miller in Boston represented the board of bar examiners.


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