May 1, 2012 March 1, 2016
RULE 5.5 UNAUTHORIZED PRACTICE OF LAW
1 (a) A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of
2 the legal profession in that jurisdiction.
3 (b) A lawyer admitted to practice in another jurisdiction and not in this jurisdiction who
4 performs legal services in this jurisdiction on a temporary basis does not engage in the
5 unauthorized practice of law in this jurisdiction when:
6 (1) the lawyer who is an employee of a client, acts on the client's behalf, or on behalf of
7 the client's commonly owned affiliates, except for work for which pro hac vice admission or
8 registration under Admission to Practice R.3 is required;
9 (2) the lawyer acts with respect to a matter that arises out of the lawyer's representation of
10 a client in a jurisdiction in which the lawyer is admitted to practice, except for work for
11 which pro hac vice admission or registration under Admission to Practice R.3 is required;
12 (3) with respect to matters for which registration or pro hac vice admission is available
13 under Admission to Practice R.3, the lawyer is authorized to represent a client or is preparing
14 for a matter in which the lawyer reasonably expects to be so authorized;
15 (4) with respect to matters, transactions or proceedings pending in or substantially related
16 to this jurisdiction and for which pro hac vice admission is not available under Admission
17 to Practice R.3, the lawyer is associated in the matter, transaction or proceeding with a
18 lawyer admitted to practice in this jurisdiction who actively participates in the representation
19 of the client in the matter, transaction or proceeding; or
20 (5) the lawyer performs a service that may be performed by a person without a license to
21 practice law or without other authorization from a federal, state or local governmental body.
22 (c) A lawyer admitted to practice in another jurisdiction but not in this jurisdiction, who
23 establishes an office or whose presence for performing legal services is other than temporary
24 in this jurisdiction does not engage in the unauthorized practice of law in this jurisdiction
26 (1) the lawyer who is an employee of a client, acts on the client's behalf, or on behalf of
27 the client's commonly owned affiliates, and the lawyer is eligible for and has complied with
28 the lawyer registration rules under Admission to Practice R.3, or
29 (2) the lawyer renders services in this jurisdiction pursuant to other authority granted by
30 federal law or a law or Court rule of this jurisdiction.
31 (d) A lawyer who is not admitted to practice in this jurisdiction shall not represent or hold
32 out to the public that the lawyer is admitted to practice law in this jurisdiction. A lawyer who
33 practices law in this jurisdiction under paragraph(b) or (c) shall disclose in writing to the
34 client that the lawyer is not licensed in this jurisdiction.
35 (e) A lawyer shall not assist another person in the unauthorized practice of law.
37  Paragraph (a) states the general rule that each state judiciary may regulate the legal
38 profession within the borders of the jurisdiction. A lawyer may regularly practice law only
39 in a jurisdiction in which the lawyer is admitted to practice. The practice of law in violation
40 of lawyer-licensing standards of another jurisdiction constitutes a violation of these Rules.
41 This Rule does not restrict the ability of lawyers authorized by federal statute or other federal
42 law to represent the interests of the United States or other persons in any jurisdiction.
43  There are occasions when out-of state lawyers perform services in this state on a
44 temporary basis under circumstances that do not create a significant risk of harm to clients,
45 the courts, or the public. Paragraph (b) identifies five situations in which the out-of-state
46 lawyer may perform services in this state without fear of violating this Rule. By creating
47 these five specific "safe harbors" for multijurisdictional practice, this Rule does not address
48 the question of whether other conduct constitutes the unauthorized practice of law. The fact
49 that conduct is not specifically included or described in this Rule is not intended to imply that
50 such conduct is the unauthorized practice of law. Nothing in this Rule is intended to
51 authorize a lawyer to establish an office or
other permanent presence other than temporary
52 for performing legal services in this jurisdiction without being admitted to practice here. In
53 addition, nothing in this Rule is intended to authorize an out-of-state lawyer to solicit clients
54 in this jurisdiction.
55  Paragraph (b)(1) permits in-house corporate counsel and governmental lawyers to
56 represent their employers and their employers' commonly-owned affiliates on a temporary
57 basis without being admitted to the bar of this state. The safe harbor in this rule does not
58 cover appearances in court or other work for which pro hac vice admission or registration is
59 required under Admission to Practice R.3.
60  Paragraph (b) (2) is intended to provide broad protection to several kinds of work in this
61 jurisdiction that are related to the lawyer's work in the lawyer's home state, such as
62 negotiations, contracts, depositions and other forms of discovery, witness interviews, and
63 meetings with clients or other parties to a transaction. The Rule recognizes that it should be
64 sufficient to rely on the lawyer's jurisdiction of licensure as the jurisdiction with the primary
65 responsibility to ensure the lawyer has the requisite character and fitness to practice law.
66 Also, the Rule recognizes that a client should be able to have a single lawyer conduct all
67 aspects of a transaction, even if the lawyer must travel to other states. The safe harbor in this
68 paragraph, however, does not cover transactions that are pending in or substantially related
69 to this state. For these state-related transactions, the out-of-state lawyer is required to seek
70 admission or to associate with a licensed North Dakota lawyer as co-counsel in the
71 representation of the client in the transaction. See paragraph (b)(4).
72  Paragraph (b)(3) requires out-of-state lawyers to be admitted pro hac vice under
73 Admission to Practice R.3 to appear in all matters pending in a tribunal or administrative
74 agency in this state. This Rule provides a temporary safe harbor to a lawyer acting on a
75 client's behalf in preparatory matters before pro hac vice admission, so long as the lawyer
76 reasonably expects to be so admitted. Such preparatory work might include factual
77 investigations and discovery in connection with litigation or an administrative proceeding
78 where the lawyer reasonably expects to be admitted pro hac vice.
79  Paragraph (b)(4) requires the out-of-state lawyer to associate with a duly licensed local
80 lawyer for all transactions that are pending in or substantially related to this jurisdiction and
81 for which pro hac vice admission is not available. The Rule recognizes that association with
82 a lawyer licensed in this jurisdiction is likely to protect the interests of both clients and the
83 public. The local lawyer may not serve merely as a conduit for the out-of state lawyer, but
84 must actively participate in and share actual responsibility for the representation of the client
85 in the matter. If the licensed lawyer's involvement is merely pro forma, then both lawyers are
86 subject to discipline under this Rule.
87  Paragraph (b)(5) allows an out-of-state lawyer to perform services that a person who is
88 not a lawyer may perform without a law license or other authorization from a federal, state,
89 or local governmental body, e.g., in private alternative dispute resolution contexts, a
90 non-lawyer may serve as a mediator or arbitrator. In some administrative proceedings, a
91 non-lawyer is permitted by law to appear on behalf of a party. The Rule assumes that the
92 public is adequately protected in these instances by the over-arching provisions of Rule 8.5,
93 which subjects all lawyers performing any services in this jurisdiction to the Rules of
94 Professional Conduct. If, for example, an out-of-state lawyer performing as a neutral engages
95 in conduct in violation of these Rules, the lawyer could be disciplined for the misconduct,
96 even if serving as the neutral was not the unauthorized practice of law under this Rule. It
97 should be noted that whereas an out-of-state lawyer who represents a client in ADR
98 proceedings pending in another jurisdiction would be covered by the safe harbor in this Rule,
99 an out-of-state lawyer who represents a client in an ADR proceeding in North Dakota must
100 register under Admission to Practice R.3. See paragraph (b)(3).
101  Paragraph (c) creates two categories of allowable multijurisdictional practice for out-of
102 state lawyers who establish an office or other permanent presence in the state: 1) in-house
103 counsel who comply with registration rules, and 2) lawyers performing services pursuant to
104 federal or state law or court rule.
105  Paragraph (c)(1) creates a safe harbor for in-house corporate counsel or other employed
106 lawyers who establish an office or other permanent presence in the state, provided they
107 comply with the registration rules under Admission to Practice R.3. If the out-of state lawyer
108 is not eligible for registration under Rule 3, this safe harbor would not apply and the lawyer
109 must seek licensure in this jurisdiction.
110  Paragraph (c) (2) permits out-of-state-lawyers to provide legal services in this state
111 when authorized to do so by federal law or state law or court rule.
112  Lawyers who are not licensed to practice law in this jurisdiction must not represent or
113 hold themselves out to the public as licensed to practice law in this jurisdiction. Paragraph
114 (d) requires out-of-state lawyers practicing law in North Dakota under one of the safe harbors
115 in paragraphs (b) and (c) to disclose in writing to their clients that they are not licensed in this
117  Limiting the practice of law to members of the bar protects the public from unqualified
118 persons performing legal services. Paragraph (e) does not prohibit a lawyer from employing
119 the services of paraprofessionals and delegating functions to them, so long as the lawyer
120 supervises the delegated work and retains responsibility for it. See Rule 5.3. Lawyers may
121 also provide professional advice and instruction to nonlawyers whose employment requires
122 knowledge of law; for example, claims adjusters, employees of financial or commercial
123 institutions, social workers, accountants and employees of government agencies. Lawyers
124 may assist independent nonlawyers authorized by law to provide particular legal services, for
125 example, paraprofessionals authorized to provide some kinds of legal services. In addition,
126 a lawyer may counsel nonlawyers who wish to represent themselves.
127  Lawyers desiring to provide pro bono legal services on a temporary basis in a
128 jurisdiction that has been affected by a major disaster, but in which they are not otherwise
129 authorized to practice law, as well as lawyers from the affected jurisdiction who seek to
130 practice law temporarily in another jurisdiction, but in which they are not otherwise
131 authorized to practice law, should consult Admission to Practice R. 3.2.
132 Rule 5.5 amended effective 03/01/05, 08/01/06, 05/01/12, 03//01/16.
133 Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards
134 Committee on 11/08/85 and 01/31/86; Minutes of the Joint Committee on Attorney
135 Standards on 06/24/03, 09/25/03, 11/14/03, 04/16/04, 08/06/04, 09/16/11, 12/09/11,
136 09/13/13, 12/06/13, 09/12/14.