Washington Lawyer - November/December 2022 - 45

SPEAKING OF ETHICS
the forum the services are provided in, or
which jurisdiction's rules apply at a given
moment in time. The proposed revision
recognizes that ethics rules will continue to
govern the conduct of lawyers and require
competence in the delivery of legal services
provided; acknowledges that courts and
other tribunals have the inherent power
to control who appears before them; and
embraces the fact that technology has fundamentally
changed the ease with which
clients and lawyers work together over vast
distances.11
In addition to discussing how client choice,
technological advances, and access to legal
services should factor into future lawyer UPL
regulation, the APRL report examines how contemporary
law practice challenges long-held
assumptions underpinning existing regulations,
including the notion that only lawyers licensed
to practice law in a particular jurisdiction are
competent to do so.12
In most places, lawyers who are not licensed in
a particular jurisdiction regularly provide legal
services in those jurisdictions through existing
regulatory exceptions, such as those found in
Model Rule 5.5. Lawyers also frequently practice
through pro hac vice admission in courts
around the country in states where they are
not licensed.13
Over the past 15 years, the standard by which
most jurisdictions assess qualification for admission
has also changed. More than 40 jurisdictions,
including the District, now accept
the Uniform Bar Exam, arguably the principal
measure of a person's competence to practice
law.14
If the primary purpose of UPL regulation is to
protect the public " against rendition of legal
services by unqualified persons, " 15
the question
of whether some or most existing UPL regulations
are overbroad and unnecessary is justified.
However, the extent to which individual
jurisdictions may choose to amend their UPL
regulations in light of the realities of modernday
law practice remains to be seen.
CONCLUSION
Pursuant to D.C. Rule 5.5(a), " [a] lawyer shall not
practice law in a jurisdiction where doing so
violates the regulation of the legal profession in
that jurisdiction. " Because the definition of the
practice of law is established by law and varies
by jurisdiction, the onus falls squarely on each
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member of the D.C. Bar to discern the requirements
of those jurisdictions where they are not
licensed but nevertheless may be deemed to
be practicing law.
D.C. Bar legal ethics counsel are available for confidential
inquiries on the Legal Ethics Helpline at
202-737-4700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 Attorney Grievance Commission of Maryland v.
Dawn R. Jackson, Miscellaneous Docket AG No. 9,
September Term, 2020, Opinion by Booth, J.
2 In the District of Columbia, D.C. Court of Appeals
Rule 49 defines the unauthorized practice of law
and its exceptions.
3 Jackson at 33-34.
4 ABA Formal Op. 495 (2020).
5 Id.
6 Before and after the pandemic, several jurisdictions
issued opinions permitting lawyers to
work remotely from jurisdictions where they
were not otherwise licensed. See, e.g., D.C.
Committee on UPL Opinion 24-20 (March 23,
2020); Maine Professional Ethics Commission
Opinion 189 (2005); Utah State Bar Ethics Advisory
Committee Opinion No. 19-03 (May 14, 2019);
Pennsylvania State Bar Opinion 2020-300 (April
2020); Wisconsin Formal Ethics Opinion EF-21-02
(January 29, 2021); Florida Opinion 2019-4 (May 20,
2021); Delaware State Bar Association Committee
on Professional Ethics Formal Opinion 2021-1
(July 9, 2021); New Jersey Advisory Committee on
Professional Ethics Opinion 742 (October 6, 2021).
7 Jackson at 49-51.
8 See New Hampshire Rule of Prof. Conduct 5.5; Va.
Rule of Professional Conduct 5.5, Comment [4];
Va. Ethics Opinion 1856 (issued by the Virginia
State Bar's Standing Committee on Legal Ethics
in 2011; approved by the Supreme Court of
Virginia in 2016).
9 " Even if this Court were to expand the exceptions
by which an attorney who is not licensed in
Maryland may maintain an office or physical
presence in this State, of course, the attorney
would not be permitted to practice Maryland
law. " Jackson at 36, n. 17.
10 Report of the Future of Lawyering Subcommittee
of the Association of Professional Responsibility
Lawyers Regarding Proposed Revised Model
Rule 5.5 (April 2022) (hereinafter " APRL Report " ),
https://aprl.net/wp-content/uploads/2022/04/
Letter-regarding-our-proposal-to-ABA-President.
pdf. APRL is an association of more than 400
lawyers and law professors advising and representing
lawyers in ethics matters. The
author, in her individual capacity, served as
a subcommittee member of APRL's Future of
Lawyering Committee that drafted the report
and proposed rule. The thoughts expressed
herein, except where duly attributed, are her
own.
11 APRL Report at 1.
12 " Jurisdictional restrictions promote a variety
of state regulatory interests. Most obviously,
by limiting law practice in the state to those
whom the state judiciary, through its admissions
process, has deemed to be qualified to practice
law in the state, they promote the state interest
in ensuring that those who represent clients
in the state are competent to do so. " Id. at 23
(quoting the Report of the ABA Commission on
Multijurisdictional Practice) (August 2002) at 9.
13 See id. at 24-25.
14 See id. at 26-28. All applicants take the same
exam. Minimum passing scores vary among
jurisdictions, and some states have an additional
state specific exam component. Id.
15 D.C. Rule 5.5, Comment [2].
NOVEMBER/DECEMBER 2022
* WASHINGTON LAWYER 45

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Washington Lawyer - November/December 2022

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