Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Massachusetts Rules of Professional Conduct encompass the MJP rules in Massachusetts (not including rules relating to attorneys licensed in foreign countries). For general information about MJP, please see the MJP General page.
Rule 5.5 provides safe harbors for legal practices that out-of-state attorneys may perform in Massachusetts without engaging in the unauthorized practice of law. Rule 8.5 recognizes that attorneys practicing in more than one jurisdiction will likely be subject to conflicting admission rules, court rules, or rules of professional conduct. Rule 8.5 attempts to minimize such conflicts and the uncertainty regarding which rules are applicable by
establishing the set of rules governing the attorney’s conduct. Attorneys should consult both of the MJP rules, as well as the other Massachusetts admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
RULE 5.5 (Unauthorized Practice of Law; MJP Practice of Law)
Rule 5.5, particularly 5.5(c) and (d), and the applicable comments allow active attorneys licensed in other jurisdictions who regularly practice law, and who are not disbarred or suspended from the practice of law, to practice in Massachusetts on a temporary basis and to practice as Massachusetts House Counsel. Attorneys must be on active status. (Comment 7).
Massachusetts MJP 5.5 Practice Generally
Rule 5.5 generally prohibits attorneys from practicing law in a jurisdiction in a way that would violate the regulation of the legal profession in that jurisdiction. Out-of-state attorneys cannot establish an office or other systematic and continuous presence in Massachusetts for the practice of law and cannot represent or hold himself of herself out to the public as being admitted to practice in Massachusetts.
Comment 4 states that presence may be systematic and continuous even if the attorney is not physically present in Massachusetts.
For practice under 5.5(c) (Temporary Practice) or 5.5(d) (House Counsel and Practice Authorized by Law), the following comments apply:
Comment 19 and RPC 8.5(a) subject attorneys to the disciplinary authority of Massachusetts.
Comment 20 provides that, in some circumstances, attorneys may have to inform the client that the attorney is not licensed to practice law in Massachusetts. An example includes when the representation occurs primarily in Massachusetts and requires knowledge of Massachusetts law.
Comment 21 does not authorize communications that advertise legal services to prospective clients in Massachusetts by attorneys admitted in other jurisdictions.
Comment 6 states that there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Massachusetts. Services may be “temporary” even though the attorney provides services in Massachusetts on a recurring basis or for an extended period of time. An example includes when the attorney is representing a client in a single lengthy negotiation or litigation.
The temporary practices include:
- Pro Hac Vice. Legal services that are undertaken in association with a lawyer who is admitted to practice in Massachusetts and who actively participates in the matter. (5.5(c)(1)).
- Reasonable Expectation of Pro Hac Vice Admission. Legal services that are in or reasonably related to a pending or potential proceeding before a tribunal in Massachusetts or another jurisdiction, if the attorney is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized.
Comment 9 states that to the extent that a Massachusetts court rule or other law requires an out-of-state attorney to obtain pro hac vice admission before appearing before a tribunal, the attorney must obtain that authority.
Comment 10 provides examples such as meeting with the client, interviewing potential witnesses, and reviewing documents. Similarly, out-of-state attorneys may engage in temporary conduct with pending litigation in another jurisdiction where the attorney reasonably expects to be authorized to appear. This conduct includes taking depositions in Massachusetts.
Comment 11 permits conduct for other attorneys who are associated with the attorney but who are not expected to appear. For example, subordinate attorneys may conduct research, review documents, and attend meetings with witnesses.
- ADR. Legal services that are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in Massachusetts or another jurisdiction. The services must arise out of or reasonably relate to the attorney’s practice in a jurisdiction where the attorney is admitted to practice and the services do not require Massachusetts Pro Hac Vice admission. (5.5(c)(3)).
Comment 12 requires attorneys to obtain pro hac vice admission for court-annexed arbitrations, mediations, or if court rules or law otherwise require.
Comment 14 provides factors for determining when services arise out of or reasonably relate to the attorney’s home jurisdiction practice. The factors include situations where the attorney may have previously represented the client, or the client was a resident in, or has substantial contacts with, the jurisdiction where the attorney is admitted.
The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the attorney’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of the attorney’s home jurisdiction. The client’s activities or the legal issues may also involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their attorney in assessing the relative merits of each. In addition, the services may draw on the attorney’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
- Practice with a Reasonable Relation to the Attorney’s Home Jurisdiction Practice. Legal services that are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the attorney’s practice in a jurisdiction where the attorneys is admitted. (5.5(c)(4)).
Comment 13 states that these services include both legal services and services that non-attorneys may perform but that are considered the practice of law when performed by attorneys.
Comment 14 (above) also applies to (c)(4).
House attorneys may practice under the Massachusetts House Counsel Rules. Massachusetts’s MJP rule also exempts house attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and continuous presence in Massachusetts.
- Attorneys may provide legal services to the attorney’s employer or its organizational affiliates so long as the legal services are not those for which a forum requires Massachusetts Pro Hac Vice admission. (5.5(d)(1)).
Comment 16 states that the rule does not authorize the provision of personal legal services to the employer’s officers or employees. The rule applies to in-house corporate attorneys, government attorneys, and others who are employed to render legal services to the employer.
Practice Authorized By Law
Attorneys may also render services in Massachusetts authorized by Massachusetts or federal law. (5.5(d)(2)). Practice under this MJP rule exempts attorneys from the prohibition against establishing an office or other systematic and continuous presence in Massachusetts.
Comment 18 includes statutes, court rules, executive regulations, or judicial precedents.
RULE 8.5 (Disciplinary Authority; Choice of Law)
Massachusetts’s Rule 8.5 is similar to the ABA Model Rule 8.5 but contains some different provisions and applicable comments. Massachusetts’s MJP rule 8.5(b)(1) only pertains to government tribunals. MJP rule 8.5(b)(2), regarding conduct not before a tribunal, defaults to the rules of the jurisdiction where the lawyer’s principal office is located unless the predominant effect of the conduct occurs elsewhere.
Disciplinary Authority. A lawyer admitted to practice in Massachusetts is subject to the disciplinary authority of Massachusetts, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Massachusetts is also subject to the disciplinary authority of Massachusetts if the lawyer provides or offers to provide any legal services in Massachusetts. A lawyer may be subject to the disciplinary authority of both Massachusetts and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The Massachusetts Rules of Professional Conduct are applied as follows:
For conduct in connection with a matter pending before a government tribunal, the applicable rules are those of the jurisdiction where the tribunal sits, unless the rules of the tribunal provide otherwise. (8.5(b)(1)).
For any other conduct, the applicable rules are those of the jurisdiction where the lawyer’s principal office is located unless the predominant effect of the conduct is in a different jurisdiction. When the predominant effect is in another jurisdiction, the rules of that jurisdiction will be applied. A lawyer is not subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. (8.5(b)(2)).
Comment 1A states that by adopting Rule 5.5, Massachusetts has made it clear that out-of-state lawyers who engage in practice in Massachusetts are subject to the disciplinary authority of Massachusetts. Massachusetts’s lawyers should be aware that they might become subject to the disciplinary rules of another state in certain circumstances.
Comment 1B states that there is no completely satisfactory solution to the choice of law question so long as different states have different rules of professional responsibility. When a lawyer’s conduct has an effect in another jurisdiction, that jurisdiction may assert that its law of professional responsibility should govern, whether the lawyer was physically present in the jurisdiction or not.
As discussed above, Comment 2 states that a lawyer may be potentially subject to more than one set of rules of professional conduct and those rules may impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction(s) where the lawyer is licensed. The lawyer’s conduct may also involve significant contacts with more than one jurisdiction.
Comment 3 states that 8.5(b) seeks to resolve the potential conflicts, because minimizing conflicts and uncertainty is in the best interests of the client, profession, and the regulating authorities. The MJP rules take the approach of providing that any particular conduct of a lawyer should be subject to only one set of rules of professional conduct, making the determination of which set of rules applies to a particular conduct as straightforward as possible, and providing protection from discipline for lawyers who act reasonably in the face of uncertainty.
Comment 4 states that paragraph (b)(1) limits the rule to matters before a government tribunal (e.g., a court or administrative agency). The parties may establish which disciplinary rules will apply in private adjudications such as arbitration.
Comment 4A states that all other conduct not pending before a government tribunal, including conduct in anticipation of a proceeding not yet pending before a tribunal, subjects the lawyer to (b)(2). Paragraph (b)(2) creates a “default” choice of rules of the jurisdiction where the lawyer’s principal office is located. The Comment further provides several reasons for the default rule.
Comment 4B states that there will be some circumstances, however, where the predominant effect of the lawyer’s conduct will clearly be in a jurisdiction other than the jurisdiction where the lawyer maintains his or her principal office. In such circumstances, the ethical rules of the other jurisdiction applies to such conduct. An example includes when litigation is contemplated but is not yet instituted in another jurisdiction, a lawyer whose principal office is in Massachusetts may well find that the rules of that jurisdiction govern the lawyer’s ability to interview a former employee of a potential opposing party in that jurisdiction. Likewise, under Rule 8.5(b), when litigation is contemplated and has not yet begun in Massachusetts, a lawyer whose principal office is in another jurisdiction may well find that the rules of Massachusetts govern the lawyer’s ability to interview a former employee of a potential opposing party in this jurisdiction.
Comment 4C states that a lawyer who serves as in-house counsel in Massachusetts pursuant to Rule 5.5, and whose principal office is in Massachusetts will be subject to the rules of Massachusetts unless the predominant effect of his or her conduct is clearly in another jurisdiction.
Comment 5 states that the application of these rules will often involve the exercise of judgment in situations in which reasonable people may disagree. So long as the lawyer’s conduct reflects an objectively reasonable application of the choice of law principles set forth in paragraph (b), the lawyer shall not be subject to discipline under the Massachusetts Rules of Professional Conduct.
Comment 6 states that if Massachusetts and another jurisdiction were to proceed against a lawyer for the same conduct, both jurisdictions should identify and apply the same governing ethics rules. Disciplinary authorities in Massachusetts should take all appropriate steps to see that they do apply the same rule to the same conduct as authorities in other jurisdictions, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.
Comment 7 states that the choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties, or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise. Moreover, no lawyer should be subject to discipline in Massachusetts for violating the regulations governing advertising or solicitation of a non-U.S. jurisdiction where the conduct would be constitutionally protected if performed in Massachusetts.