Washington Lawyer - November/December 2022 - 44

SPEAKING OF ETHICS
UPL: Reconsidering Regulation
By Hope C. Todd
I
n January 2022, the Maryland
Court of Appeals dismissed a disciplinary
case against D.C. lawyer
Dawn R. Jackson that alleged she
had engaged in the unauthorized
practice of law (UPL) in Maryland.1
This case presents a cautionary tale
about the inherent risk of violating
UPL regulations, such as those in
Maryland and in the District, that
- at least for now - retain their
focus on the physical location of
a lawyer while engaged in the
practice of law.2
In 2014 Jackson's small civil litigation law firm
moved its offices from the District to Maryland.
A year later, she sought guidance from the
Maryland Office of Bar Counsel regarding how
to ethically practice within the state. The
court found that she had complied with the
guidance she had received: Jackson restricted
her practice to D.C. clients and cases; the firm's
Maryland attorneys handled all Maryland
clients and legal matters; and Jackson stated
clearly that she was not licensed to practice in
Maryland on all her communications, including
the firm's website, business cards, and letterhead.
Nonetheless, the Maryland Office of Bar
Counsel commenced a disciplinary investigation
against her in 2018.
Ultimately, although the court agreed that
Jackson had technically violated the Maryland
UPL rules, it declined to impose sanctions and
dismissed the case. Importantly, the matter also
caused the court to reflect on the " continued
wisdom " of the " plain language of the rule " :
" [s]pecifically, we question whether a rigid prohibition
based solely upon geographic considerations
of physical presence remains an
appropriate litmus test for determining
whether an individual is engaged in UPL . . . . " 3
The Maryland high court is not the only one to
question such accepted wisdom.
THE 'INVISIBLE LAWYER'
In 2020, nine months into the pandemic, the
ABA Standing Committee on Ethics and Professional
Responsibility issued Formal Opinion
495, in which it interpreted Model Rule 5.5 (Unauthorized
Practice of Law) and concluded:
[I]n the absence of a local jurisdiction's
finding that the activity constitutes the
unauthorized practice of law, a lawyer may
practice the law authorized by the lawyer's
licensing jurisdiction for clients of that jurisdiction,
while physically located in a jurisdiction
where the lawyer is not licensed if
the lawyer does not hold out the lawyer's
presence or availability to perform legal
services in the local jurisdiction or actually
provide legal services for matters subject to
the local jurisdiction, unless otherwise
authorized.4
In reaching this conclusion, the committee
opined:
The purpose of Model Rule 5.5 is to protect
the public from unlicensed and unqualified
practitioners of law. That purpose is not
served by prohibiting a lawyer from practicing
the law of a jurisdiction in which the
lawyer is licensed, for clients with matters
in that jurisdiction, if the lawyer is for all
intents and purposes invisible as a lawyer
to a local jurisdiction where the lawyer is
physically located, but not licensed.5
No doubt, for many lawyers locked down and
teleworking from home in jurisdictions where
44 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2022
they were not licensed, the ABA committee's
cogent analysis was a welcome statement of
the obvious. However, the nature of the public
protection served by requiring such lawyers
to be " invisible " remains far from clear.
ABA Opinion 495, and those jurisdictions
whose rules or ethics opinions are in accord,6
would not help a lawyer such as Jackson, who
worked out of a physical office in Maryland -
a jurisdiction where she was not licensed -
even though she was careful to serve only
District clients and she communicated clearly
her jurisdictional limitations. At the end of the
day, even though she was not an " invisible
lawyer, " the Maryland court concluded that
she had caused no public harm.7
In recommending that Maryland revise its UPL
rules, the court discussed and supported the
approach of both Virginia and New Hampshire,
which permit lawyers not licensed in those
jurisdictions to maintain a physical office to
serve clients from places where the lawyers are
licensed.8
The court made clear that it is not
recommending that non-Maryland-licensed
lawyers be permitted to practice Maryland law
from offices located in Maryland,9
ties of modern-day law practice raise the
question, why not?
BEYOND GEOGRAPHICAL BOUNDARIES
In April 2022, the Association of Professional
Responsibility Lawyers (APRL) issued a report
urging the ABA to adopt a new version of
Model Rule 5.5 that would eliminate the traditional
limitation that lawyers practice only in
the states where they are admitted.10
forth in the report's introduction:
As set
APRL's proposed revision of Model Rule 5.5
reflects the concept that a lawyer admitted
in any U.S. jurisdiction should be able to
engage in the practice of law and represent
willing clients without regard to the geographic
location of the lawyer or the client,
but the reali

Washington Lawyer - November/December 2022

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2022

Your Voice
From Our President
Practice Management
Toward Well-Being
Planting the Seeds: Pro Bono Helps Nonprofits Flourish
A Primer on D.C.’s New Debt Collection Law
Eviction Writ Quashing: Last Line of Defense for Tenants
Employment Law Implications of Dobbs
How Immigration Can Help Solve the U.S. Pilot Shortage
Ten Things You Might Have Forgotten Since the Pandemic
SPECIAL SECTION Young Lawyers Bring Passion to Public Interest Work
Attorney Briefs
Taking the Stand
Disciplinary Summaries
On Further Review
Member Spotlight
Worth Reading
Speaking of Ethics
The Learning Curve
The Pro Bono Effect
A Slice of Wry
Washington Lawyer - November/December 2022 - Cover1
Washington Lawyer - November/December 2022 - Cover2
Washington Lawyer - November/December 2022 - 1
Washington Lawyer - November/December 2022 - 2
Washington Lawyer - November/December 2022 - 3
Washington Lawyer - November/December 2022 - 4
Washington Lawyer - November/December 2022 - Your Voice
Washington Lawyer - November/December 2022 - 6
Washington Lawyer - November/December 2022 - From Our President
Washington Lawyer - November/December 2022 - Practice Management
Washington Lawyer - November/December 2022 - Toward Well-Being
Washington Lawyer - November/December 2022 - Planting the Seeds: Pro Bono Helps Nonprofits Flourish
Washington Lawyer - November/December 2022 - 11
Washington Lawyer - November/December 2022 - 12
Washington Lawyer - November/December 2022 - 13
Washington Lawyer - November/December 2022 - A Primer on D.C.’s New Debt Collection Law
Washington Lawyer - November/December 2022 - 15
Washington Lawyer - November/December 2022 - 16
Washington Lawyer - November/December 2022 - 17
Washington Lawyer - November/December 2022 - Eviction Writ Quashing: Last Line of Defense for Tenants
Washington Lawyer - November/December 2022 - 19
Washington Lawyer - November/December 2022 - Employment Law Implications of Dobbs
Washington Lawyer - November/December 2022 - 21
Washington Lawyer - November/December 2022 - How Immigration Can Help Solve the U.S. Pilot Shortage
Washington Lawyer - November/December 2022 - 23
Washington Lawyer - November/December 2022 - 24
Washington Lawyer - November/December 2022 - 25
Washington Lawyer - November/December 2022 - Ten Things You Might Have Forgotten Since the Pandemic
Washington Lawyer - November/December 2022 - 27
Washington Lawyer - November/December 2022 - 28
Washington Lawyer - November/December 2022 - 29
Washington Lawyer - November/December 2022 - SPECIAL SECTION Young Lawyers Bring Passion to Public Interest Work
Washington Lawyer - November/December 2022 - 31
Washington Lawyer - November/December 2022 - 32
Washington Lawyer - November/December 2022 - Attorney Briefs
Washington Lawyer - November/December 2022 - Taking the Stand
Washington Lawyer - November/December 2022 - 35
Washington Lawyer - November/December 2022 - Disciplinary Summaries
Washington Lawyer - November/December 2022 - 37
Washington Lawyer - November/December 2022 - On Further Review
Washington Lawyer - November/December 2022 - 39
Washington Lawyer - November/December 2022 - Member Spotlight
Washington Lawyer - November/December 2022 - 41
Washington Lawyer - November/December 2022 - Worth Reading
Washington Lawyer - November/December 2022 - 43
Washington Lawyer - November/December 2022 - Speaking of Ethics
Washington Lawyer - November/December 2022 - 45
Washington Lawyer - November/December 2022 - The Learning Curve
Washington Lawyer - November/December 2022 - The Pro Bono Effect
Washington Lawyer - November/December 2022 - 48
Washington Lawyer - November/December 2022 - 49
Washington Lawyer - November/December 2022 - 50
Washington Lawyer - November/December 2022 - 51
Washington Lawyer - November/December 2022 - A Slice of Wry
Washington Lawyer - November/December 2022 - Cover3
Washington Lawyer - November/December 2022 - Cover4
https://washingtonlawyer.dcbar.org/novemberdecember2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/novemberdecember2021
https://washingtonlawyer.dcbar.org/julyaugust2021
https://washingtonlawyer.dcbar.org/julyaugust2021
https://washingtonlawyer.dcbar.org/marchapril2021
https://washingtonlawyer.dcbar.org/marchapril2021
http://washingtonlawyer.dcbar.org/novemberdecember2020
https://washingtonlawyer.dcbar.org/novemberdecember2020
https://washingtonlawyer.dcbar.org/septemberoctober2020
https://washingtonlawyer.dcbar.org/julyaugust2020
https://washingtonlawyer.dcbar.org/june2020
https://washingtonlawyer.dcbar.org/may2020
https://washingtonlawyer.dcbar.org/march2020
https://washingtonlawyer.dcbar.org/january2020
https://washingtonlawyer.dcbar.org/november2019
https://washingtonlawyer.dcbar.org/october2019
https://washingtonlawyer.dcbar.org/september2019
https://washingtonlawyer.dcbar.org/julyaugust2019
https://washingtonlawyer.dcbar.org/june2019
https://washingtonlawyer.dcbar.org/may2019
https://washingtonlawyer.dcbar.org/april2019
https://washingtonlawyer.dcbar.org/march2019
https://washingtonlawyer.dcbar.org/january2019
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/august2018
https://washingtonlawyer.dcbar.org/august2018
https://washingtonlawyer.dcbar.org/June/July2018
https://washingtonlawyer.dcbar.org/april2018
https://washingtonlawyer.dcbar.org/March2018
https://washingtonlawyer.dcbar.org/February2018
https://washingtonlawyer.dcbar.org/january2018
http://washingtonlawyer.dcbar.org/december2017
http://washingtonlawyer.dcbar.org/November2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/august2017
http://washingtonlawyer.dcbar.org/july2017
http://washingtonlawyer.dcbar.org/June2017
http://washingtonlawyer.dcbar.org/may2017
http://washingtonlawyer.dcbar.org/april2017
http://washingtonlawyer.dcbar.org/march2017
http://washingtonlawyer.dcbar.org/february2017
http://washingtonlawyer.dcbar.org/january2017
http://washingtonlawyer.dcbar.org/december2016
http://washingtonlawyer.dcbar.org/november2016/
http://washingtonlawyer.dcbar.org/october2016
http://washingtonlawyer.dcbar.org/september2016
https://www.nxtbookmedia.com