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

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