Can California lawyers practice in other states? It’s a question that many have asked and will continue to ask. This is all the more the case now, where the truly modern reality of practicing law is that now more than ever, legal professionals are allowed (if not encouraged) to work remotely.
In fact, if you spend enough time on any social media platform, you’re sure to come across more videos than you ever thought possible featuring lawyers and other professionals working from places like luxury resorts, vintage motorhomes, and converted school buses. For those of us used to toiling away in stuffy offices, this can seem like an ideal existence.
But what happens when those gadabout lawyers cross state lines? Can they still work outside the jurisdictional boundaries of their State Bar Associations? The answer, like so many things in the law, is, “It depends.”
In this post, we’ll focus on the intricacies of interstate practice for California lawyers, beginning with my own personal experience with the issue.
One might think that in this post-pandemic, highly mobile climate, bar associations nationwide would be scrambling to enact rules recognizing that competent practice can happen from anywhere.
That’s not necessarily the case, even despite organizations like the American Bar Association are making progress. Even if, like me, you’ve received a hard “No” from the jurisdiction where you currently reside, there are a few workarounds that may assist you in hanging a shingle wherever your converted school bus parks.
So, put that bus in gear and let’s drive down the winding road of interstate practice.
Many years ago, I moved from the fast-paced world of Southern California lawyer life to a milder existence as a writer on the Oregon Coast. When I moved, I kept my California bar license intact because lawyering seemed like a safe fallback position if writing didn’t work out. Indeed, the early years as a writer were lean and eventually I found myself accepting a regular paycheck from an Oregon law firm.
Let’s be clear from the outset — there was never any question that I was not allowed to practice law for Oregon clients within the State of Oregon. There is no reciprocity between the two states, and I had no interest in being hit with an Unlicensed Practice of Law (“UPL”) charge from the Oregon Bar Association.
So, for several months, I worked as a glorified paralegal.
About a year after I started, however, I got a call from a former client in California. His business had been sued and he wanted to retain me to handle the litigation. It seemed like a no-brainer that I’d be able to work on his case from my office in Oregon and then fly to California for hearings, depositions, and the like. After all, I was still a California-licensed attorney and I would be working on a matter concerning issues of California law that was pending before a California court.
Nonetheless, before I accepted the engagement, I decided to place a call to Oregon’s equivalent of the Ethics Hotline, wanting to know whether California lawyers can practice in another state. I explained the situation and ended the conversation with, “this shouldn’t be a problem, right?”
I couldn’t have been more wrong. The woman on the other end of the phone sounded downright angry. “Absolutely not,” she snorted.
“But why?” I asked. “This is a California case and I’m a California lawyer with an internet connection.” I’ll never forget her reply.
“Where, precisely, is your butt located?”
“Your butt. Where are you sitting right now?”
“I’m in an office outside of Portland.”
“Well then,” she stated with an air of indignance, “keep going down that path and I’ll see you when you’re defending the UPL case we’ll bring against you.”
Next, I called the California State Bar Ethics Hotline, confident that they’d understand the issue more clearly and give me their blessing. Nope. They just asked what the Oregon Bar said. I told them, they sighed, and said, “looks like it’s a no-go.”
Not wanting to move back to California, be charged with UPL, or take the Oregon Bar exam, I simply let my law license lapse and started to pursue freelance writing gigs with a little more vigor. Best decision I ever made, but I digress.
All of this occurred pre-pandemic. Surely things have changed by now, right? Not so fast.
Volumes have been written about the necessity (and success) of remote work in the legal industry following the pandemic. There’s no need to repeat that here. And while the pandemic forced much of the legal industry to join the 21st century from a technological perspective (remote hearings becoming the norm, for example), it surprisingly did not move the needle when it comes to the issue of interstate practice.
In fact, in 2020, the California Standing Committee on Professional Responsibility and Conduct issued an Interim Opinion addressing the following question: “What are a California lawyer’s ethical duties when working remotely?”
In it, the Committee reminded members of their ongoing professional duties in a remote-work world. The duties of competence, communication, and supervision, for example, still clearly applied to remote work.
When it came to the issue of UPL charges that might result from working in another state, however, the Committee punted:
The committee recognizes that lawyers working remotely may temporarily or permanently relocate to another state where the lawyer is not licensed to practice law. This committee does not opine on issues of unauthorized practice of law, including whether a particular conduct or activity constitutes the unauthorized practice of law. California licensed lawyers practicing California law remotely in another state where they are not licensed should consult the multijurisdictional practice and unauthorized practice of law rules and authorities of the state where they are physically present.
I can only hope the lawyers who followed this advice found a nicer person on the other end of the line than I did.
Meanwhile, the American Bar Association took a more generous stance on post-pandemic, interstate remote work. In Formal Opinion 495, the ABA recognized that, “Technology has made it possible for a lawyer to practice virtually in a jurisdiction where the lawyer is licensed, providing legal services to residents of that jurisdiction, even though the lawyer may be physically located in a different jurisdiction where the lawyer is not licensed.”
The ABA concluded that this sort of practice was acceptable so long as, “the local jurisdiction has not determined that the conduct is unlicensed or unauthorized practice of law and if [the out of state lawyers] do not hold themselves out as being licensed to practice in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction.”
Now there’s a common sense rule. Unfortunately, out-of-state practice still depends on the whims of jurisdiction where you choose to park your bus. That’s great if your host state is forward thinking. But what if the state where you’ve landed still sees your practice as UPL?
Hold on, my friends, there may be some workarounds.
It’s possible that when it comes to the issue of practicing law in another state, California lawyers have it tougher than lawyers from most other states. After all, California does not offer reciprocity to out-of-state lawyers and, generally speaking, other states don’t offer reciprocity to us.
Nevertheless, if you are dead set on practicing law in another state, there are a few options out there for you. And, perhaps surprisingly, most of them existed before the pandemic and before today’s focus on mobile practice. Here’s the run-down:
Sometimes, your clients get sued or have other legal issues in another state. Does that mean you can’t travel there to represent them? Not really. A California-licensed attorney may be granted temporary permission to practice law in another state for a specific case through pro hac vice admission.
Be careful, however, pro hac vice practice has its limitations. For example, out-of-state counsel must typically associate with local counsel, pay a fee, and meet other requirements as set by the court or jurisdiction in which they seek to practice. Some states, like Oregon, also limit these admissions to a period of one year.
In many states, an attorney who is working in-house for a corporation can practice law without being formally admitted to that state’s bar association. Arkansas, Arizona, Nebraska, New Hampshire, Washington, and the District of Columbia currently allow these in-house exemptions.
Twenty-six other states offer limited licenses to in-house attorneys. Note, however, that if you choose this route, you can only practice law on behalf of your corporate employer.
There’s one other backdoor into out-of-state practice that may apply to you, but it is admittedly rather niche. If you practice in an area of law that is exclusively federal (such as bankruptcy or immigration), many U.S. District Courts and Courts of Appeals throughout the nation will honor your California bar license.
Keep in mind though that even some district courts within the same state will have different rules in this regard. Thus, it is best to do your research before you make your first appearance before a federal judge.
The issue of interstate practice is a two-sided coin. On the one hand, you can understand each state’s interest in having its lawyers educated in state-specific laws. On the other hand, given today’s technological remote work possibilities, enforcing UPL laws based on nothing but current geography seems a bit harsh.
Surely, the state bar associations will continue to wrestle with this issue and will possibly evolve the rules around interstate practice. In the meantime, California attorneys would be well-advised to do extensive research before practicing law from another jurisdiction.
The question of whether California lawyers can practice in other states is tricky. The modern legal landscape encourages remote work in many instances, but interstate practice for California lawyers remains 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. The American Bar Association recognizes the potential of remote practice, but individual state bar associations have varying stances.
You should carefully research and consult with state bar associations to navigate this issue and avoid unauthorized practice of law charges or falling afoul of problems as I did.
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