Opinion 2006-5

(September 2006)

The inquirer graduated from a Law School in reciprocal state A in 2003, served as federal judge law clerk for a year and has been practicing at a law firm in State A for the past two years. The inquirer took and passed both A’s bar exam as well as that of a non-reciprocal state, B, in July 2004, and is admitted and in good standing in both states. He is also admitted to several federal district courts.

Recently the inquirer moved to Pennsylvania and will be practicing as an associate at a law firm in Philadelphia. His practice will be confined exclusively to federal court (e.g., antitrust litigation) in federal district courts primarily (if not exclusively) located outside of Pennsylvania. Additionally, all of his work will be supervised by attorneys admitted to practice law in Pennsylvania. The inquirer makes it clear on his email, the firm's webpage, and on his business cards that he is admitted in states A and B only.

The inquirer advises that he plans to apply for admission in Pennsylvania by waiver under Pennsylvania Bar Admission Rule 204 (PaBAR204) if he is still practicing in Pennsylvania in two year's time. This issue is whether his work in Pennsylvania, as a lawyer not admitted to practice here, will nevertheless satisfy the practice requirements necessary to meet the criteria in PABAR204.

PaBAR204 has various requirements which have to be met in order to be admitted by waiver. The two parts of PaBAR204 that will be addressed in this opinion are (4) and (8). Subpart (4) provides that an applicant must provide:

Presentation of proof satisfactory to the Board that the applicant has for a period of five years of the last seven years immediately preceding the date of filing of the application for admission to the bar of this Commonwealth devoted a major portion of time and energy to the practice of law in one or more states.

Subpart (8) provides in part that

For purposes of this rule, the phrase ‘‘practice of law’’ is defined as engaging in any of the following legal activities, provided such activities were performed in a state in which the applicant was admitted to practice law or in a state that affirmatively permitted such activity by a lawyer not admitted to practice law in the jurisdiction: Representation of one or more clients in the private practice of law.

. . .
[emphasis added].

The Committee takes note that the provisions of subpart (4) do not require that the applicant have been engaged in the practice of law in a jurisdiction to which he is admitted. Rather the requirement is that a majority of the inquirer’s time has been spent practicing law in any given state either to which he is admitted or to which he is not admitted but where such practice is affirmatively permitted by that state. Thus, the operative question of this inquiry is whether the inquirer’s proposed practice, which is to represent clients in federal litigation in courts to which he is admitted is permissible in Pennsylvania. Any other work done here will be under the supervision of a Pennsylvania licensed attorney.

The Committee addressed such an issue recently in opinions 2004-6 and 2005-14. Both those inquiries concerned inquirers who were engaging solely in immigration practice primarily in Pennsylvania even though neither was admitted here. Both those opinions, as well as this opinion, center around the provisions of Pennsylvania Rule of Professional Conduct (the “Rules”) 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law.). Rule 5.5 (d) provides that:

(d)  A lawyer admitted in another United States jurisdiction or a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:...? (2)  are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

The Committee holds that provided a major portion of the inquirer’s time is devoted to representations engaged in by the inquirer in those federal courts to which he is admitted that the provisions of Rule 5.5d2 would permit him to do so from a law firm located in Pennsylvania. As regards any other court appearances, the inquirer would be required to be admitted pro hoc vice to the appropriate court. In addition, work done on any other matters would require that the inquirer be surpervised by a Pennsylvania admitted attorney who would be ultimately responsible for such work.

In addition, because of the inquirer’s limited admissions, these should be noted on the inquirer’s business cards, stationary and any other place where his name appears in either general firm or individual publicity, or client related communications.

The Committee notes that since it is the inquirer’s intention to become admitted to Pennsylvania, that this opinion presumes that he is not located within the Commonwealth on a temporary basis. Because of this presumption, the provisions of Rule 5.5(c)(1) regarding temporary practice in Pennsylvania by attorneys admitted in other states does not apply to this inquiry. Finally, the Committee is not taking any position as to whether the inquirer’s work as a judicial clerk, prior to his admission in State A would qualify as time towards the five year practice requirement in PaBAR204(4).

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.