RULE 5.5 UNAUTHORIZED PRACTICE OF LAW

(a) A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

(b) A lawyer admitted to practice in another jurisdiction and not in this jurisdiction who performs legal services in this jurisdiction on a temporary basis does not engage in the unauthorized practice of law in this jurisdiction when:

(1) the lawyer who is an employee of a client, acts on the client's behalf, or on behalf of the client's commonly owned affiliates, except for work for which pro hac vice admission or registration under Admission to Practice R.3 is required;

(2) the lawyer acts with respect to a matter that arises out of the lawyer's representation of a client in a jurisdiction in which the lawyer is admitted to practice, except for work for which pro hac vice admission or registration under Admission to Practice R.3 is required;

(3) with respect to matters for which registration or pro hac vice admission is available under Admission to Practice R.3, the lawyer is authorized to represent a client or is preparing for a matter in which the lawyer reasonably expects to be so authorized;

(4) with respect to matters, transactions or proceedings pending in or substantially related to this jurisdiction and for which pro hac vice admission is not available under Admission to Practice R.3, the lawyer is associated in the matter, transaction or proceeding with a lawyer admitted to practice in this jurisdiction who actively participates in the representation of the client in the matter, transaction or proceeding; or

(5) the lawyer performs a service that may be performed by a person without a license to practice law or without other authorization from a federal, state or local governmental body.

(c) A lawyer admitted to practice in another United States jurisdiction or in a foreign jurisdiction but not in this jurisdiction, who establishes an office or whose presence is other than temporary in this jurisdiction does not engage in the unauthorized practice of law in this jurisdiction when:

(1) the lawyer who is an employee of a client, acts on the client's behalf, or on behalf of the client's commonly owned affiliates, and the lawyer is eligible for and has complied with the lawyer registration rules under Admission to Practice R.3; and when the lawyer is a foreign lawyer and the services require advice on the law of this or another U.S. jurisdiction or of the United States, provided that the advice must be based upon the advice of a lawyer who is duly licensed and authorized by this jurisdiction to provide the advice, or

(2) the lawyer renders services in this jurisdiction pursuant to other authority granted by federal law or a law or Court rule of this jurisdiction.

(d) A lawyer who is not admitted to practice in this jurisdiction shall not represent or hold out to the public that the lawyer is admitted to practice law in this jurisdiction. A lawyer who practices law in this jurisdiction under paragraph(b) or (c) shall disclose in writing to the client that the lawyer is not licensed in this jurisdiction.

(e) A lawyer shall not assist another person in the unauthorized practice of law.

(f) For purposes of paragraph (c), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.

Comment

[1] Paragraph (a) states the general rule that each state judiciary may regulate the legal profession within the borders of the jurisdiction. A lawyer may regularly practice law only in a jurisdiction in which the lawyer is admitted to practice. The practice of law in violation of lawyer-licensing standards of another jurisdiction constitutes a violation of these Rules. This Rule does not restrict the ability of lawyers authorized by federal statute or other federal law to represent the interests of the United States or other persons in any jurisdiction.

[2] There are occasions when out-of state lawyers perform services in this state on a temporary basis under circumstances that do not create a significant risk of harm to clients, the courts, or the public. Paragraph (b) identifies five situations in which the out-of-state lawyer may perform services in this state without fear of violating this Rule. By creating these five specific "safe harbors" for multijurisdictional practice, this Rule does not address the question of whether other conduct constitutes the unauthorized practice of law. The fact that conduct is not specifically included or described in this Rule is not intended to imply that such conduct is the unauthorized practice of law. Nothing in this Rule is intended to authorize a lawyer to establish an office or or other permanent presence in this jurisdiction without being admitted to practice here. In addition, nothing in this Rule is intended to authorize an out-of-state lawyer to solicit clients in this jurisdiction.

[3] Paragraph (b)(1) permits in-house corporate counsel and governmental lawyers to represent their employers and their employers' commonly-owned affiliates on a temporary basis without being admitted to the bar of this state. The safe harbor in this rule does not cover appearances in court or other work for which pro hac vice admission or registration is required under Admission to Practice R.3.

[4] Paragraph (b) (2) is intended to provide broad protection to several kinds of work in this jurisdiction that are related to the lawyer's work in the lawyer's home state, such as negotiations, contracts, depositions and other forms of discovery, witness interviews, and meetings with clients or other parties to a transaction. The Rule recognizes that it should be sufficient to rely on the lawyer's jurisdiction of licensure as the jurisdiction with the primary responsibility to ensure the lawyer has the requisite character and fitness to practice law. Also, the Rule recognizes that a client should be able to have a single lawyer conduct all aspects of a transaction, even if the lawyer must travel to other states. The safe harbor in this paragraph, however, does not cover transactions that are pending in or substantially related to this state. For these state-related transactions, the out-of-state lawyer is required to seek admission or to associate with a licensed North Dakota lawyer as co-counsel in the representation of the client in the transaction. See paragraph (b)(4).

[5] Paragraph (b)(3) requires out-of-state lawyers to be admitted pro hac vice under Admission to Practice R.3 to appear in all matters pending in a tribunal or administrative agency in this state. This Rule provides a temporary safe harbor to a lawyer acting on a client's behalf in preparatory matters before pro hac vice admission, so long as the lawyer reasonably expects to be so admitted. Such preparatory work might include factual investigations and discovery in connection with litigation or an administrative proceeding where the lawyer reasonably expects to be admitted pro hac vice.

[6] Paragraph (b)(4) requires the out-of-state lawyer to associate with a duly licensed local lawyer for all transactions that are pending in or substantially related to this jurisdiction and for which pro hac vice admission is not available. The Rule recognizes that association with a lawyer licensed in this jurisdiction is likely to protect the interests of both clients and the public. The local lawyer may not serve merely as a conduit for the out-of state lawyer, but must actively participate in and share actual responsibility for the representation of the client in the matter. If the licensed lawyer's involvement is merely pro forma, then both lawyers are subject to discipline under this Rule.

[7] Paragraph (b)(5) allows an out-of-state lawyer to perform services that a person who is not a lawyer may perform without a law license or other authorization from a federal, state, or local governmental body, e.g., in private alternative dispute resolution contexts, a non-lawyer may serve as a mediator or arbitrator. In some administrative proceedings, a non-lawyer is permitted by law to appear on behalf of a party. The Rule assumes that the public is adequately protected in these instances by the over-arching provisions of Rule 8.5, which subjects all lawyers performing any services in this jurisdiction to the Rules of Professional Conduct. If, for example, an out-of-state lawyer performing as a neutral engages in conduct in violation of these Rules, the lawyer could be disciplined for the misconduct, even if serving as the neutral was not the unauthorized practice of law under this Rule. It should be noted that whereas an out-of-state lawyer who represents a client in ADR proceedings pending in another jurisdiction would be covered by the safe harbor in this Rule, an out-of-state lawyer who represents a client in an ADR proceeding in North Dakota must comply with Admission to Practice R.3. See paragraph (b)(3).

[8] Paragraph (c) creates two categories of allowable multijurisdictional practice for out-of state lawyers who establish an office or other permanent presence in the state: 1) in-house counsel who comply with registration rules, and 2) lawyers performing services pursuant to federal or state law or court rule.

[9] Paragraph (c)(1) creates a safe harbor for in-house corporate counsel or other employed lawyers who establish an office or other permanent presence in the state, provided they comply with the registration rules under Admission to Practice R.3. If the out-of state lawyer is not eligible for registration under Rule 3, this safe harbor would not apply and the lawyer must seek licensure in this jurisdiction. Paragraph (c)(1) also creates a safe harbor when legal services are performed by a foreign lawyer and require advice on the law of other jurisdictions. To decrease any risk to the client, when advising on the domestic law of a United States jurisdiction or on the law of the United States, a foreign lawyer authorized to provide legal services under paragraph (c)(1) must base the advice on the advice of a lawyer licensed in this jurisdiction.

[10] Paragraph (c) (2) permits out-of-state-lawyers to provide legal services in this state when authorized to do so by federal law or state law or court rule.

[11] Lawyers who are not licensed to practice law in this jurisdiction must not represent or hold themselves out to the public as licensed to practice law in this jurisdiction. Paragraph (d) requires out-of-state lawyers practicing law in North Dakota under one of the safe harbors in paragraphs (b) and (c) to disclose in writing to their clients that they are not licensed in this state.

[12] Limiting the practice of law to members of the bar protects the public from unqualified persons performing legal services. Paragraph (e) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for it. See Rule 5.3. Lawyers may also provide professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and employees of government agencies. Lawyers may assist independent nonlawyers authorized by law to provide particular legal services, for example, paraprofessionals authorized to provide some kinds of legal services. In addition, a lawyer may counsel nonlawyers who wish to represent themselves.

[13] Lawyers desiring to provide pro bono legal services on a temporary basis in a jurisdiction that has been affected by a major disaster, but in which they are not otherwise authorized to practice law, as well as lawyers from the affected jurisdiction who seek to practice law temporarily in another jurisdiction, but in which they are not otherwise authorized to practice law, should consult Admission to Practice R. 3.2.

Rule 5.5 amended effective 03/01/05, 08/01/06, 05/01/12, 03//01/16, 10/01/16.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 11/08/85 and 01/31/86; Minutes of the Joint Committee on Attorney Standards on 06/24/03, 09/25/03, 11/14/03, 04/16/04, 08/06/04, 09/16/11, 12/09/11, 09/13/13, 12/06/13, 09/12/14; 02/26/16; 04/29/16.