Extrajurisdictional Practice by Lawyers

It is a commonplace that business and the economy are increasingly becoming global in structure, with little respect for national boundaries, let alone those of individual states. Yet licensure to practice law is almost exclusively the province of individual states. Nonetheless, lawyers frequently represent clients in ways that include providing some portion of their legal services with contacts in states where the lawyers are not admitted. The "foreign" state's law may apply, some or all of the subject matter may be in that state, one or more parties (possibly including the client) may be domiciled there, and some of the work (e.g. interviews or negotiating sessions) may occur there. While such representations are common, there is no explicit authorization for most of them in the governing rules or statutes and the relevant case law is both extremely fragmentary and often hostile (mildly or severely) to the practices addressed by the particular court. To some extent, lawyers who engage in multistate practice have relied on a combination of custom and the infrequency of challenges to permit continuation of their practices. The leading commentator on the subject has aptly characterized this approach as "sneaking around." While the subject has received significant scholarly attention, the focus of that attention has been largely normative: what should the law be and, to the extent reform is called for, how should it best be accomplished? My focus here is different. Practicing lawyers must make decisions about what they can and cannot do under existing law, as opposed to the reformed law advocated by the commentators. This article focuses on that question, evaluating various lines of analysis applicable to particular types of activities. It concludes that some of them appear fairly clearly permissible, discusses and evaluates the arguments that to varying degrees support permissibility of other activities, and notes some that seem clearly restricted by current law, at least in some jurisdictions. An understanding of this analysis should be useful to lawyers trying to shape their practices in ways that will best serve their clients, while avoiding improper activities. It may also be useful to reformers looking for ways to take modest steps in directions where larger steps do not seem feasible.