Some lawyers read the words “in this jurisdiction” to mean practicing law using only the laws of the jurisdiction.
C ontrary to popular belief, lawyers admitted to practice by a state are not restricted to practicing the “law of the state.” Instead, as a general rule, lawyers are authorized to practice law as long as they are within the state’s geographic boundaries. This is similar to medical doctors, engineers, and other licensed professionals who are licensed by a state and can therefore practice their craft within it. Perhaps because state legislatures and courts create laws with jurisdictional boundaries that are sometimes tested on bar exams, this has given rise to the thought that lawyers are restricted to advising clients only on those laws. But then how does one account for authorization to advise on federal and international laws that were not tested on the bar exam? And what about those complex practice fields, like immigration law, that are not tested?
Still not convinced? Take a look at NYSBA Opinion 375: “If competent so to do and not prohibited by law, it is not improper for a lawyer to give advice on the law of a state or jurisdiction in which he is not admitted to practice.” N.Y. State 108 (1969). Additionally, see ABA Formal Opinion 248: “There is no impropriety in [a] New York lawyer advising on Mexican Law, for a lawyer of one state may advise on the law of another state. For the correctness of such advice he assumes full legal responsibility. By giving such advice he represents that he is qualified to do so.”
There is only one mention of the content of the laws themselves within the current ABA Model rule on multijurisdictional practice—Rule 5.5(d)(1)—requiring foreign lawyers to base their advice “upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice.” Even so, some lawyers read the words “in this jurisdiction” to mean practicing law using only the laws of the jurisdiction.
O f course, one has to be competent. See ABA Model Rule 1.1. If these concepts seem modern, take a look at Degen v. Steinbrink, 202 App. Div. 477, 481, 195 N.Y. Supp 810, 814 (1st Dept 1922) aff’d, 236 N.Y. 669 (1923): “When a lawyer undertakes to prepare papers to be filed in a State foreign to his place of practice, it is his duty, if he has no knowledge of the statutes, to inform himself for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner. Not to do so and to prepare documents that have no legal potency, by reason of their lack of compliance with simple statutory requirements is such a negligent discharge of his duty to his client as should render him liable for loss sustained by reason of such negligence.” In this 100-year-old case there is no mention of the NY-licensed lawyer performing unauthorized work by handling a matter that involved the laws of states bordering New York.
And though you might not be physically present within a state, you might be virtually present there and violate Rule 5.5 or UPL laws. Put another way, it is unclear what “in this jurisdiction” as described in ABA Rule 5.5 means. That said, the physical location of the lawyer—what some call the “butt-in-the-seat” aspect of the rule—is becoming less important. See, for example, ABA Opinion 495 and SCRPC 5.5, Comment 4.
If I’ve convinced you by now, keep in mind that there may be some states, countries, or other jurisdictions that at least try to claim it is an extraterritorial violation to advise on “their” laws, regardless of your location.