Resolving Multi-jurisdictional
Practice of Law
Issues in Estate Planning
February 10, 2012
By:
Peter J. Walsh, Esq.
O’Neil, Cannon, Hollman, DeJong & Laing S.C.
111 East Wisconsin Avenue, Suite 1400
Milwaukee, WI 53202
www.wiswalsh.com
www.wilaw.com
Discussion Topics
• Issues with UPL in estate planning
• General prohibitions on UPL
• Wisconsin’s new rule on UPL and
multi-jurisdictional practice
• Permissible practices in Wisconsin
• Penalties for UPL
UPL Issues in Estate Planning
• Mobility of clients
• Long term nature of attorney/client
relationship - when does the
relationship need to end to avoid
UPL?
• Bright lines and gray areas
General Prohibitions on UPL
•ABA Model Rule of Professional
Conduct 5.5: UPL & Multijurisdictional
Practice of Law (“MR”)
– Response to Birbrower (NY-Attorneys,
CA-client, CA-arbitration, denial of fees
because of UPL).
– Protecting public against rendition of
legal services by unqualified persons.
– Is there a harm needing to be
addressed?
General Prohibitions on UPL
• Broad prohibition of MR
• A lawyer may not practice law in
a state in which he is not
licensed
• Broad exceptions to the MR
prohibition
General Prohibitions on UPL
Four Important Considerations:
1. Does the conduct constitute the
“practice of law”?
2. In which jurisdiction is the law being
practiced?
3. Does the practice of law violate
regulations of the applicable
jurisdiction?
4. Would the practice be permitted in
Wisconsin for lawyers not admitted in
Wisconsin?
“Practice of Law”
• Varies by jurisdiction.
• Finding of UPL under a state’s ethical
rules is contingent on the state’s
definition of the practice of law.
• WI Supreme Court Rule 23:01 provides
guidance:
– “[T]he application of legal principles and
judgment [regarding] the circumstances . . .
of another . . . Where there is a client
relationship of trust . . . and which require
the knowledge, judgment, and skill of a
person trained as a lawyer.”
Practice of Law
Examples of Practice of Law in
Wisconsin:
• Giving legal advice for a fee.
• Drafting or selecting legal documents.
• Representing a person or entity in court or
other proceeding, or in an administrative
proceeding.
• Negotiating legal rights or responsibilities on
another person’s behalf.
Practice of Law
Activities that do not require a license to
practice law in Wisconsin, include:
• Selling legal forms in any format,
• Activities preempted by federal law, and
• Selecting or completing legal documents,
where the document may contain various
blanks to be filled in and the selection or
completion of the document requires only
common knowledge regarding the required
information and legal consequences
Practice of Law
• Case law from other jurisdictions
provides guidance
– IL Supreme Court: the giving of advice that
requires the use of any degree of legal
knowledge or skill.
– AZ Supreme Court: providing legal advice
or services including preparing documents,
expressing legal opinions, representation
in a judicial or similar proceeding,
preparing documents for filing with a court
or other agency, and negotiating legal
rights or responsibilities for another.
Practice of Law
• Case law from other jurisdictions
provides guidance (cont.)
– FL Supreme Court: giving advice and
performing services for compensation,
which affect a person’s legal rights and
requires that the person giving such
advise possess legal skill and
knowledge of the law greater than that
possessed by the average citizen.
“Practice of Law” in Estate Planning
• No cases in Wisconsin/cases from other states on
the issue indicate the following may be the
practice of law.
• Information gathering for estate planning analysis.
• Advice regarding testamentary transfers.
• Preparing estate planning documents.
• Preparing Deeds and Sales Agreements.
• Conducting legal seminars.
• Probate administration.
• Assisting with IRS Audits and Preparing tax
returns – Not UPL.
• Federal practice – Not UPL.
The Jurisdiction
• Modern technology makes identifying
the jurisdiction more complicated.
• Two types of presence, physical and
virtual, need to be considered.
• Physical presence:
– An attorney practices in the jurisdiction in
which her office is located.
– In re Roel, Mexican attorney advising NY
residents as to Mexican law practiced in NY
because office located in NY.
The Jurisdiction
• Physical presence (cont.)
– In re Discipline of Lerner, AZ-attorney practiced
law in NV by meeting with NV-client in NV-office.
– Birbrower
• NY-attorneys, CA-clients, CA-arbitration over CAcontract.
• Meetings and negotiating sessions in CA
• Practice in CA constituting UPL.
– Spivak v. Sachs
• CA-attorney, NY-client, CN-family law matter.
• Attorney spent 14 days doing legal work in NY.
• Practice in NY constituted UPL.
The Jurisdiction
• Virtual Presence
– Telephone, facsimile, emailing
– MR - presence can be systematic
and continuous even with no
physical presence
– FL Rule – presence may be
regular even if lawyer is not
physically present in State
The Jurisdiction
• Virtual Presence (cont.)
– Situs of the client is key
• If client is resident of state of attorney’s
license, then broad representation
permissible
• Attorney can represent in-state client with
matters of home state law as well as
matters of other state law
• Restatement indicates that attorney can
provide broad representation to residents of
attorney’s state
The Jurisdiction
• Virtual Presence (cont.)
– Estate of Condon
• CO-Attorneys, CO-client, CA-probate
proceeding
• CO-Attorneys performed work in CO
• CA-Co-Counsel handled CA-court filings
• Co-Attorneys did not practice in CA, No
UPL
• Client’s residence determinative factor
The Jurisdiction
• Virtual Presence (cont.)
– If client is not a resident of state of
attorney’s license then
representation may be limited
– El Gemayel
• Lebanese-Attorney representation of NY
client on issue of Lebanese law
permissible
• Attorney’s visits with client in NY did not
constitute practice in NY so no UPL
Permissible Practice
• Look to the laws of the applicable
jurisdiction to determine if practice
is permissible.
• Attorneys are subject to the
discipline of any state in which they
practice regardless of where
attorney is licensed.
• Reciprocal discipline is also a
possibility.
Permissible Practice
• Look to the MR for guidance (if the
state has adopted a similar rule).
– Most states have adopted some
variation of the MR.
– For example, Wisconsin and Florida
have adopted similar versions of the
MR.
– Only 2 states, Kansas and New York,
have declined to adopt the MR.
Permissible Practice in WI
• Wisconsin version of the MR
– Includes reciprocal provision not
included in the MR or Florida Rule
– Provides that if it is okay for nonWis. Attorney to do in Wis., then
okay for Wis. Attorney to do in
another state
– Unclear whether this would apply in
another state where version does
not have a reciprocal provision
Permissible in Wisconsin
• Four Exceptions for practice on
an “Occasional Basis”
– “Temporary basis” in MR
– Recognition that temporary
practice in jurisdiction may not
cause an unreasonable risk to
clients, public or courts
What constitutes
“Occasional Basis”?
• No single test.
• Services may be temporary even
if on a recurring basis.
• Services may be more than
temporary even if no physical
presence in State.
What constitutes
“Occasional Basis”? (cont.)
• Examples:
– Gould, NY-licensed attorney lived in FL
for over 29 years and established an
office there – NOT “temporary basis”.
– District of Columbia UPL Op, Contract
lawyer performing short-term legal work
for lawyers and law firms in the District
of Columbia was practicing on a regular
and not temporary basis.
What constitutes
“Occasional Basis”?
• Examples (cont.)
– In re Estate of Cooper, TN-licensed
lawyer filed notice in a probate
proceeding in Nebraska for TN client
considered to be practice on a
“temporary basis” because it arose
out of the lawyer’s home state
practice and was an isolated filing.
Four “Occasional Basis”
Exceptions
1.& 2. Participation in litigation, arbitration,
mediation, and dispute resolution.
- Meeting with clients,
- Interviewing witnesses, and
- Reviewing documents.
3. Co-counsel arrangements.
4. Representation arising out of or related
to practice in a jurisdiction in which the
lawyer is admitted to practice.
*This list of exceptions is NOT exhaustive!
Co-Counsel Exception
• “Association with local counsel may
permit . . . activities not otherwise
permissible.”
• Licensed counsel must actively
participate and share responsibility
• Local counsel cannot be a mere
conduit to instate practice
• Arrangement can only be temporary
Co-Counsel Exception
• The client should be informed that
Attorney not admitted to State
• Local Counsel may need to
implement actions
• Local Counsel may risk assisting
in UPL if he fails to materially
participate
Co-Counsel Exception
• Examples:
– Florida Bar v. Savitt, Non-Florida lawyer’s
activities must merely constitute
assistance of Florida lawyer
– Florida Bar v. Beach,
• local counsel assisted in UPL by acting as
co-counsel
• No supervision of out-of-state attorney nor
interaction with client
– In re Knight, Wis-Attorney suspended for
allowing out-of-state attorney to use her
name and trust account
Co-Counsel Exception
• Examples (cont.)
– Fought & Co. - No UPL
• OR-Attorney, OR-Client, HILitigation, HI-co-counsel
• OR-Attorney did not sign papers
filed in HI
• HI-co-counsel made all HI-court
appearance
• Situs of client important to
determination
Co-Counsel Exception
• Examples (cont.)
– In re Waring’s Estate – No UPL
• NY-Attorney, NJ-Client, NJ-Estate
Administration, NJ-co-counsel
• Permissible because NJ-CoCounsel’s active participation and
transitory nature of matter
– In re Jackman, Mass-Attorney
engaged in UPL by working in NJfirm for seven years
Exception for Representations
Arising out of Home-State
• Exception for temporary representation
that arises out of or is reasonably related
to state of license
• Covers matters that are ancillary to home
state
• Provides some latitude for transactional
attorneys by allowing
– Clients to retain same lawyer for multiple
transactions
– Cross-border services by recognized experts
Exception for Representations
Arising out of Home-State (cont.)
• May include much of estate planning
• Some states limit exception to existing
clients
• Factors for determining whether exception
applies include:
– Past representation of client by attorney
– Applicable issue has significant connection to home
state
– Client’s legal issues involve multiple states
– Attorney has recognized expertise in area of law
• Activities of all lawyers involved in
representation are relevant
Exception for Representations
Arising out of Home-State (cont.)
• Examples:
– Lindsey, NY-Estate Planning Attorney could
draft and oversee an execution of Will by
Mass-client because isolated incident
– Restatement Example: IL-Estate Planning
Attorney could prepare estate planning
documents for FL residents – very lenient
standard
– Florida Bar, IL-Attorney committed UPL by
preparing Will and antenuptial agreement for
FL-clients
What May be Permitted in
Wisconsin?
• Preparing deeds for WI client to real
property in another state.
• Advising trustee of a WI trust as to real
property located in another state; or
advising trustee of a trust situs in another
state under WI laws.
• Preparing state income and estate tax
returns for WI decedent or trust for
interests with situs in another state; or
preparing returns for non-WI decedent or
trust with respect to property situs in WI.
What May be Permitted in
Wisconsin? (cont.)
• Preparing federal income tax
returns and/or dealing with Federal
income tax issues for any
individual, trust, or business entity.
• Representing non-WI clients with
probate proceedings in WI court
(i.e. probate, guardianship, and
trust administration).
What May NOT be Permitted
in Wisconsin
• Representing a non-WI resident in estate
planning matters without material
participation of an attorney licensed in
client’s home state.
• Administering an estate or trust of non-WI
resident concerning property not situs in
WI.
• Representing non-WI resident in probate
proceedings in another state (i.e. probate,
guardianship, and trust administration).
Potential Penalties for UPL
• Criminal
• Ethical Disciplinary Action
• Denial of Pro Hac Vice
• Malpractice Liability
• Denial of Fees
Potential Penalties for UPL (cont.)
• Criminal
– UPL is Class C Misdemeanor in
Wisconsin.
– UPL is Felony in Third Degree in
Florida.
– In re Schrader, GA-Attorney charged
with misdemeanor for filing a probate
petition in NY without pro hac vice
status
Potential Penalties for UPL (cont.)
• Ethical Disciplinary Action
– Civil contempt
– Injunctive relief
– Suspension
– Disbarment
– Reciprocal discipline
Potential Penalties for UPL
• Ethical Disciplinary Action (cont.)
–Reciprocal discipline
• Attorney subject to discipline in both state of
license and state of UPL
• In re Kingsley, Attorney licensed in PN
disbarred in DE for UPL in DE
• In re Bailey, Attorney disbarred in MA as
reciprocal discipline for disbarment in FL
• In re Disciplinary Proceeding of Ness, WIAttorney suspended in WI for UPL in MN
• In re Disciplinary Proceeding of Crandell,
Discipline in WI for misconduct elsewhere is
permissible
Potential Penalties for UPL
• Denial of Pro Hac Vice Motion
– Preston, Attorney denied pro hac vice
motion because filed 18 months after
complaint
– Office of Disc., OH-court denied NJAttorney pro hac vice motion even
though timely filed because attorney
appeared in court before motion
granted
Potential Penalties for UPL
• Malpractice Liability
– Significant differences in substantive
law and procedures between states
– Court filing by unlicensed Attorney may
be a “nullity”
• Preston, AR-complaint signed by
unlicensed attorney dismissed
• Fruin, IL-complaint filed by WI-attorney
dismissed because no prior permission
granted to attorney
Potential Penalties for UPL
– Court filing by unlicensed
Attorney may be a “nullity”
(cont.)
• McEvers, IL-Court declined to
follow harsh result of Fruin
• Wellmore Coal, VA-Appeal
dismissed because notice signed
by unlicensed attorney
Potential Penalties for UPL
– Court filing by unlicensed
Attorney may be a “nullity” (cont.)
• In Re Ambac Assurance Corp., WICourt found that filing an appeal
without pro hac vice status is a
fundamental defect which cannot
be corrected
– If complaint can be disregarded
what about a Trust or a Will
drafted through UPL
Potential Penalties for UPL
• Denial of Fees (cont.)
– Successful attorneys can still be denied fees for
UPL
– Chandris, FL-court denied contingency fee
because of UPL
– Bolte, WI-attorney denied large contingency fee
because of UPL in Colorado Goldberg, FL-Court
rules that victims may bring private actions to
recover attorney’s fees paid incident to UPL
– Goldberg, FL-court rules that victim may bring
private actions to recover attorney’s fees paid
incident to UPA
– ALR – Attorney may be ordered to return fees
received for drafting a Will when work constitutes
UPL
Issues in Multi-Jurisdictional
Practice
QUESTIONS
By:
Peter J. Walsh, Esq.
O’Neil, Cannon, Hollman, DeJong & Laing S.C.
www.wiswalsh.com
www.wilaw.com