When I’m driving down I-95 and leave New Jersey to cross into Delaware, I know it. I also know that if I’m caught speeding in Delaware, the only police I need to worry about are the ones with Delaware on the side panels. Of course, reciprocity when it comes to fines and points are sometimes blurry, but not nearly as confusing as crossing state lines in your law practice, typically on the Internet. However, most lawyers today have practices that are not confined to one or two states. These two intertwining and overlapping issues—virtual law practices and multi-state jurisdictional issues—go hand in hand, and often create as many questions as answers.

While some think of a virtual law practice as a sole practitioner in their pajamas working out of a home office or basement, the reality is there are huge corporate law VLPs that are basically the equivalent of an AMLAW 200 firm without the bricks and mortar, but with the same attorneys (their former partners) and same clients (portable book of business)—minus some of the office hassles and politics that come with the territory. But whether you are a family law solo or M&A lawyer, you may very well be set up now as a VLP. And the question then is exactly what state are you “Under His Eye” (sorry, my wife and I have been watching ‘The Handmaid’s Tale’ on Hulu…I had to use it)? Figuring out which state bars are “in charge” and have oversight is often half the battle.

MSJ issues have increased substantially over the last decade as the practice of law has shifted more and more from being location-based. For me, advising law firms on ethics issues has often shifted from where the firm or matter is based to where the work or the client might be. I’m typically concerned with the Rules of Professional Conduct as they relate to advertising, marketing, and solicitation in a multitude of jurisdictions that may or may not have authority over the lawyer or law firm. But the myriad of issues are very real, and wading through the muddy waters of VLPs and MJPs can seem treacherous. The central issue has shifted in recent years from “where am I licensed to practice law” to “which jurisdictions come into play.”

Loosening Regulations

Many states have adjusted their advertising rules in recent years to catch up with technology, multi-jurisdictional practices, and an ever-increasing competitive global marketplace. In the last few years, many states, including Texas and Pennsylvania, have made significant updates. These include changes to filing requirements, interpretation of solicitation, and enforcement mechanisms. Other states have changes in the works. But there are still lots of variables and nuances in prohibitions and required disclaimer language from state to state.

Deregulation of law practice in places like Utah and Arizona—designed to improve access to justice and increase innovation—has some law firms opening offices simply to take advantage of non-lawyer ownership and the benefits that accompany it. For years, among the benefits of having an office in Washington, DC was the ability to share fees with non-lawyers.

The Model Rule 5.5 Debate

I often hear divergent arguments on Model Rule 5.5 which addresses the Unauthorized Practice of Law. The rule states that a lawyer who is not admitted to practice in a jurisdiction shall not establish an office or other systematic and continuous presence in the jurisdiction for the practice of law or represent that they are admitted to practice law in the jurisdiction. Some attorneys advocate that a lawyer admitted in any United States jurisdiction should be able to practice law without regard to the geographic location of the lawyer or client. Others argue that option means attorneys can come into their state and take business from them.  Some attorneys (wrongly) think that a federal practice means not having to worry about certain state bar restrictions.

Whenever people cite the ABA model rules, I remind them that the ABA model rules are just that—model rules. They might provide the structure, but the states control their own rules, including deciding what rules they are going to have and how they will implement them. (Not to mention vastly different interpretations of the same written regulations.) For example, Missouri issued an informal opinion finding that any lawyer who practices law within the state—even if they are representing clients or working for a firm located in a different jurisdiction—must be licensed in Missouri. Otherwise, they are engaging in the unauthorized practice of law. Good luck knocking on my hotel room door when I drop my daughter off for school at Washington University next year—nothing to see here, I assure you.

In May 2023, however, Michigan took a different approach. According to adopted changes to its Rule 5.5, lawyers from other states can practice while in Michigan as long as they do not say they have an office, provide legal services or offer to provide legal services in Michigan. A few states have similar language—don’t make it look or sound like you have a state licenseor office when you don’t.

Should a Bar License Function Like a Driver’s License?

I recently presented on the topic of multi-jurisdictional practice and the unauthorized practice of law with a fellow lawyer and colleague, Charity Anastasio. Charity makes many good arguments for the need to revise Rule 5.5 in today’s legal marketplace and contends that we should be able to practice anywhere we can drive. In arguing why those revisions most likely will not come to fruition anytime soon (I reference “in my lifetime”), it is not so much that I’m against the benefits related to making the changes, but that the profession—governed at a state bar level—will simply not allow it. Yes, it might sound perfectly sensible. However, states are not giving up control over the profession and courts. Best to understand where the guard rails are in any and every state where you engage in the practice of law.

Micah Buchdahl is an ethics attorney that focuses on marketing, advertising and solicitation issues and compliance for law firms. When not reviewing the next great ad campaign to ensure it is kosher, he can usually be found in the closest stadium or arena. Micah (typically with his kids) attends over 100 sporting events each year—including 60+ Phillies games, 10+ Eagles (yes, that included the Super Bowl), a bunch of Flyers, Temple football and basketball, and since you can’t win them all—15 Sixers games too.