Washington Lawyer - August 2017 - 40

ASK THE ETHICS EXPERTS

USE DUE DILIGENCE TO AVOID
UNAUTHORIZED PRACTICE OF LAW
By Hope C. Todd

Q
A

I am a D.C. Bar member who lives and works in the District of Columbia.
My mother-in-law called me in tears asking for my legal help dealing with
a collections matter. I am not licensed to practice law in her home state.
Am I ethically permitted to email the collection agency to resolve the
dispute on her behalf?

You should check the specific rule/laws governing the unauthorized practice
of law (UPL) in the jurisdiction where your mother-in-law resides. D.C. Rule
5.5(a) provides that "[a] lawyer shall not [p]ractice law in a jurisdiction where
doing so violates the regulation of the legal profession in that jurisdiction."
Whether particular conduct constitutes UPL or falls under a permissible exception is determined by each individual jurisdiction's laws, ethics, or court rules. Although a version of
ABA Model Rule 5.5 exists in most jurisdictions, the law in this area is fraught with risk and
far from uniform.
The UPL regulations in many jurisdictions do not account for advances in technology or
expressly recognize the way many lawyers currently practice law: from kitchen tables; cars
(hands-free only, of course!); the beach; other countries; and perhaps even someday from
outer space. The regulations of some jurisdictions, including Rule 49 of the District of
Columbia Court of Appeals, primarily focus on where the lawyer is physically located when
engaging in the practice of law. Other jurisdictions focus on other factors such as a client's
residence and/or the law of the jurisdiction at issue. Notwithstanding that many jurisdictions (including the District) have exceptions for temporary and incidental practice, a few
jurisdictions have moved to more aggressively accommodate a rapidly changing profession
across state lines. For example, Arizona and New Hampshire have UPL rules that expressly
permit teleworking for lawyers who meet certain requirements.
In In re Panel File 39302 No. A15-2078 (Aug. 31, 2016), a Colorado lawyer was found to have
engaged in UPL in Minnesota for sending multiple emails on behalf of his in-laws on
a debt collection matter arising in Minnesota (where he was not licensed) from his office in
Colorado, where he had been licensed for 30 years. Above and beyond providing you with
grounds to inform your mother-in-law that you, unfortunately, cannot assist her in her
collections matter, this case should serve as a broader cautionary tale. Indeed, if you are
contemplating legal work for a resident of another jurisdiction, or from a location where
you are not licensed, you should check the UPL rules of that particular jurisdiction. Though
this may seem burdensome, it is also prudent.

D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower
are available for inquiries at ethics@dcbar.org.
To access the D.C. Rules of Professional Conduct, visit dcbar.org, keywords:
D.C. Rules.

40 WASHINGTON LAWYER

* AUGUST 2017 *

http://www.dcbar.org/bar-resources/legal-ethics/amended-rules/index.cfm http://www.dcbar.org

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