The terms “limited admission” or “temporary practice” are often used interchangeably used to refer to situations in which an out-of-state lawyer (“OSL”) – or even a lawyer from another country – practices in a state different from that of his or her admission. However, to be sure, by “limited admission” you refer to situations in which the OSL practices, on a continuous basis, in a state in which she is not admitted but with a limitation in scope; for example the foreign legal consultant or the in-house counsel. I will not deal with those situations in this blog. By “temporary practice” we refer to situations in which the OSL practices where he is not admitted for a limited time (which can be more or less long, but cannot be on a permanent basis).

Limited admission/temporary practice is a hot topic these days, particularly with regard to foreign lawyers. For example, the NY Court of Appeals has just adopted a new rule, 22 NYCRR § 523, which permits limited admission and temporary practice by out-of-state and foreign lawyers (see here) and the South Carolina Supreme Court has before it a proposal from the International Law Committee approved by the House of Delegates dealing with both limited admission and temporary practice by foreign lawyers in South Carolina.

It is my experience that the rules on temporary practice are poorly understood by many. The basic rule is Model Rule of Professional Conduct 5.5, but there are often other applicable court rules. Model Rule 5.5(b) provides:

A lawyer who is not admitted to practice in this jurisdiction shall not:

“(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.”

However, the Rule provides for a number of exceptions.

Read here my first blog on Temporary practice: Temporary Practice: when a lawyer moves to a jurisdiction in which he is not admitted.

In a second blog, I have dealt with another type of temporary practice: the “Fly-in and Fly-out” and other temporary litigation and ADR practice.

Here I deal with temporary practice in transactional matters. In these matters the relevant rules are ABA Model Rules 5.5(c)(1) and (c)(4).

          First of all, if the OSL associates or is associated by local counsel who actively participates in the matter, the OSL may properly perform any services related to transactional matters, subject of course to the lawyer’s obligation of competency under Rule 1.1.   Rule 5.5(c)(1).

       Second, even if she does not want to associate with a local counsel, she can generally temporarily perform services as allowed by Rule 5.5(c)(4) (and the several state variations). An OSL lawyer can performs services that

“(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

            This Rule has a wide range of variations across the country. The ABA Model Rule 5.5(c)(4) – and the jurisdictions that have adopted it as such – only requires the representation to be “reasonably related” to the lawyer’s practice.

Some jurisdictions have narrowed the scope of this exception from that found in the Model Rules. For example, in South Carolina or Tennessee, it must be an existing client in a jurisdiction in which the OSL is admitted, for the OSL to be able to handle a transactional matter without any involvement of local counsel. Some jurisdictions have a more liberal view. For example, in Florida, the OSL can perform service “for a client who resides in or has an office in the jurisdiction in which the lawyer is authorized to practice,” in addition to services that “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” To make another example of variation, consider for example that in Virginia an OSL can perform services that

“arise out of or are reasonably related to the representation of a client by the Foreign Lawyer in a jurisdiction in which the Foreign Lawyer is admitted to practice or, subject to the foregoing limitations, are governed primarily by international law. Virginia Rules of Professional Conduct 5.5(d)(4)(iv)”

            How long can a OSL perform this “temporary practice” be? Comment [6] to Model Rule 5.5 (and the comments of many jurisdictions) indicate that temporary practice need not be limited in time:

” [6] There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.”

This blog is a portion and a modified version of an article that I published on the South Carolina Lawyer: Limited Admission to Practice in and Outside of South Carolina, South Carolina Lawyer 12 (November 2015).

For more information, Nathan M. Crystal