london link halskette

When is a Colorado Lawyer Not a Colorado Lawyer?:
Pitfalls to Avoid In MultiState Practice
link london
© 1997 Charles F. Luce, Jr.
All Rights Reserved Worldwide

         To cut to the heart of the matter, a Colorado lawyer is never not a Colorado lawyer. This is made crystal clear by R.P.C. 8.5:

A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.

Moreover, a Colorado attorney disciplined in another jurisdiction is also frequently subjected to reciprocal discipline in Colorado:

Except as otherwise provided by these Rules, a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of a lawyer shall, for purposes of proceedings pursuant to these Rules, conclusively establish such misconduct.

Colorado Rule 241.17(a).(1) See, e.g., People v. Cohan, 913 P.2d 523 (Colo. 1996);

Colorado State Bd. v. Thompson, ___ P.2d ___, 1996 WL 658545 (Colo. App. November 14, 1996);

People v. Williams, 892 P.2d 885 (Colo. 1995).

         Only a few years ago, multistate practice issues were something only sprawling megafirms concerned themselves with. Increased mobility of attorneys and clients, however, has in recent years stretched the limits of statutes and rules of law developed for an era when it took a week to cross Colorado on horseback. And, while the Internet certainly can't claim to have created multistate practice ethics issues by itself, it has dramatically increased interstate legal business to the point where even a sole practitioner should know something about ethics issues regarding multistate legal practice.

Unauthorized Practice of Law

         A state by state review of unauthorized practice of law statutes is well beyond the scope of this article. It is a logical starting point, however. It is also significant because the Colorado Rules prohibit conduct which, under the laws of another state, constitute the unauthorized practice of law:

A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction . . .

                  . . . .

The definition of the practice of law is established by law and varies from one jurisdiction to another.

R.P.C. 5.5 & Comment.

         Few attorneys engage exclusively in matters involving only Colorado parties and property. Certainly the mere fact that some party to a transaction regarding which an attorney is rendering legal advice is not from Colorado, or that the transaction involves property located outside of Colorado, does not require the attorney to be licensed in every state in which each party to the transaction is a resident, or in each jurisdiction in which the goods presently reside, or through which they may pass. Although the "unauthorized practice of law" is defined somewhat differently by each jurisdiction, typically, where the transaction does not solely involve interpretation of the laws of a state(s) in which the attorney is not licensed, or have its locus of activity or significant and continuing connection only with such other jurisdiction(s), the Colorado lawyer's involvement will generally not be considered the unauthorized practice of law. But don't count on it. See generally Wolfram, Sneaking Around in the Legal Profession: Interjurisdictional Unauthorized Practice by Transactional Lawyers, 36 S. Texas L.Rev. 665 (1995).

         U.S. government lawyers, and attorneys engaged in matters exclusively involving federal law, e.g., prosecution of a patent, are typically exempt from state attorney licensing requirements. See Sperry v. Florida, 373 U.S. 379 (1963). Not too much should be read into Sperry, however, since very few matters solely involve the application of federal law. For example, while the Patent Act unquestionably preempts states from granting patents, it does not preempt state law regarding patent license agreements. Thus, a patent lawyer who does anything more than simply prosecute patent applications must be licensed by the state in which he practices.

         In short, apart from the above-discussed nebulous, but generally recognized, exceptions to the unauthorized practice of law, if a transaction does not have a substantial Colorado connection, or involves real estate outside of Colorado, the attorney should anticipate that unlicensed lawyering may be considered the unauthorized practice of law. The prudent lawyer will associate with, or refer the client to, local counsel in such situations anyway, since the risk of local "legal booby traps," and the attendant risk of a malpractice claim, is ample motivation.

Conflicts of Laws

         Recognizing the modern, interstate nature of law practice today, ABA Model Rule 8.5(b) establishes a choice of law rule.(2) This section has not yet been adopted by the Colorado Supreme Court, though there has been a call to enact some of choice of law rule. See R.P.C. 8.5, supra. Because the ABA Comment, discussing conflicts of laws, is included to Colorado Rule 8.5, and because there is no Colorado Comment to this Rule, the position of the Colorado Supreme is unclear. The court has not yet been faced with a situation requiring a choice of law determination. See People v. Schindelar, 845 P.2d 1146 (Colo. 1993) (finding that at the relevant time, the Utah and Colorado disciplinary rules were the same).

Special MultiState Practice Rules

         Finally, there are special multistate practice rules of which Colorado attorneys should be aware. In addition to R.P.C. 5.5 and 8.5 discussed, supra, Rule 7.5(c) provides:

A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations of those not licensed to practice in the jurisdiction where the office is located.

Many Cyber ethicists suggest that this is good advice for attorney websites, too.

The interstate nature of law practice today is unavoidable; committing the unauthorized practice of law is not. Most attorneys already have good instincts regarding when to associate with or refer a matter to local counsel. It is increasingly important that these reflexes be kept sharp.

         1. Discipline by another jurisdiction is subject to collateral attack in Colorado under certain limited circumstances. The subject of the discipline procedure, however, is beyond the scope of this article.

         2. ABA Model Rule 8.5(b)(2)(ii) provides that, in transactional matters, the rules of the jurisdiction "in which the lawyer principally practices" apply unless the "particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed."

Return to the first page of Charles Luce on Legal Ethics and the Practice of Law.
tiffany online