Practicing Law In Another State: Can Attorneys Cross Borders?

Lawyers are generally licensed to practice law in the state where they took and passed the bar exam. However, the modern legal landscape, with its encouragement of remote work, has made the issue of interstate practice more complex. While some workarounds like pro hac vice admission, in-house counsel exceptions, and federal practice exist, the lack of reciprocity between states poses challenges.

Practicing federal law

Federal law fields, such as bankruptcy and immigration, may not require admission to the state bar where the attorney is practicing. For example, an immigration attorney admitted to practice law in any state can represent a client before DHS, USCIS, the BIA, or any immigration court in any other state.

However, this is a risky approach, as demonstrated by a case in the Sixth Circuit. A lawyer who practiced bankruptcy law in Michigan with only a Texas bar card was sued by the Michigan Bar for the unauthorized practice of law. While the Sixth Circuit ultimately sided with the attorney, the issue remains unclear outside of that circuit.

Another way to practice law in multiple states is through reciprocity. Some states have agreements with other states that allow attorneys to practice in both without taking another bar exam. For example, the District of Columbia allows lawyers who have practiced for at least five years in any state to practice in D.C. without taking the D.C. bar exam. This is also known as the Uniform Bar Examination (UBE), which is standardized across multiple states.

Additionally, remote work has become more common for lawyers, and the American Bar Association (ABA) has stated that attorneys may practice law remotely in a jurisdiction where they are licensed. However, if the jurisdiction is one where they are not licensed, attorneys must ensure that the arrangement is allowed and must not advertise that they are authorized to practice law there.

Uniform Bar Exam (UBE)

The Uniform Bar Exam (UBE) is a standardised bar exam that is currently administered by 13 states. The UBE is not specific to any state law but instead tests majority law. This means that attorneys who pass the UBE in one state can apply for admission to the bar in another UBE state by transferring their score.

The UBE is a valuable option for attorneys who want to practice in multiple states. By passing the UBE, attorneys can avoid the challenge of taking multiple state bar exams, which can be time-consuming and stressful. Additionally, the UBE provides flexibility and expands an attorney's practice area, enabling them to work with clients across state borders.

However, it is important to note that the UBE score has a validity period, typically between two to five years. After this period, attorneys may need to retake the bar exam or apply for character and fitness clearance.

The UBE is gaining popularity, and more states are adopting it each year. This trend towards uniformity in bar exams is expected to continue, providing greater ease for attorneys wishing to practice in multiple states.

In conclusion, the UBE offers a standardised and efficient pathway for attorneys seeking to expand their practice across state lines. By taking advantage of the UBE, attorneys can enhance their professional opportunities and better serve their clients' needs, regardless of their location.

Reciprocity between states

To get reciprocity in a new state, attorneys must typically apply for admission to the bar of that state. Each state has its own rules and requirements for admission, which may include:

• Practicing law for a certain number of years
• Completing continuing legal education courses
• Passing a background check
• Sitting for a state-specific component
• Undergoing a character and fitness investigation
• Taking an additional course

It's important to note that bar reciprocity does not apply to all states, and the rules and requirements for reciprocity can vary widely between states. Attorneys who wish to practice law in another state should carefully review the rules and requirements for reciprocity in that state to ensure they meet the necessary criteria.

Some states have reciprocity agreements with other states, allowing attorneys who are licensed in those states to be admitted to the bar without having to take the exam or complete additional CLE requirements. For example, the District of Columbia allows lawyers who have practiced law for at least five years in any state to practice law in D.C. without taking the D.C. bar exam.

• Alaska has reciprocity agreements with Colorado, Connecticut, the District of Columbia, Georgia, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.
• California does not offer reciprocity but offers a shorter bar examination for attorneys licensed in other states in good standing for at least four years prior to their application.
• Georgia offers a shorter bar examination for lawyers admitted by examination and in good standing in another state for at least twelve months before taking its Attorneys' Examination. It also offers admission without examination for lawyers from reciprocal states who have practiced for at least five years.

Pro hac vice admission

To gain pro hac vice admission, attorneys must submit an application to the state bar before representing a client in a particular case. The specific requirements vary across jurisdictions, but typically, the attorney must be vouched for by local counsel regarding their ability to learn the local law and comply with local rules. The attorney must also swear to abide by the written rules and make a proactive effort to learn them.

It is important to note that pro hac vice admission can be revoked by the court at any time for good cause without a hearing. Additionally, the attorney admitted through this process must remain associated with a member of the bar of the court throughout their involvement in the case.

Remote work

For example, an attorney licensed in Florida can practice Florida law on behalf of their Florida clients while they are physically located in Ohio. However, they must not indicate any Ohio presence on their business cards, website, or advertising materials. They also cannot solicit business or accept clients within the state or appear before Ohio tribunals. Similar rules apply in Colorado, where the Office of Attorney Regulation Counsel (OARC) discussed the remote practice of law in a November 2020 newsletter.

The American Bar Association's (ABA) Model Rules of Professional Conduct, which have been adopted by most states, state that an attorney may not "establish an office or other systematic and continuous presence in this jurisdiction for the practice of law" unless licensed in that jurisdiction. However, the ABA has also concluded that merely working remotely in another state does not constitute establishing an office, as long as the attorney does not advise on that state's laws, advertise their services there, or use a local address on their business materials.

Some groups are advocating for a change to the ABA's Model Rule 5.5, which governs the unauthorized practice of law and multijurisdictional practice. They argue that lawyers should be able to practice law in any state, emphasizing clients' right to choose their counsel and addressing the access-to-justice gap in certain geographic areas.

It is important to note that the specific rules and regulations regarding remote practice can vary by state, and attorneys should consult the relevant bar associations and seek official legal advice to ensure compliance with the laws of the states in which they intend to practice.

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