Wisconsin Multijurisdictional Practice (MJP)

Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Wisconsin Rules of Professional Conduct encompass the Multijurisdictional Practice Rules (MJP) in Wisconsin (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 Wisconsin 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 Wisconsin 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, and who are not disbarred or suspended from the practice of law for disciplinary reasons or medical incapacity, to practice in Wisconsin on an occasional basis and to practice as Wisconsin House Counsel.

A special Wisconsin Comment states that attorneys are not precluded from seeking admission pro hac vice if the attorney is administratively suspended from practice in a jurisdiction other than the attorney’s primary jurisdiction of practice. Attorneys cannot be suspended or disbarred in their primary jurisdiction of practice.

Comment 7 states that attorneys cannot be “technically” admitted, such as being on inactive status.

Wisconsin’s MJP Rule 5.5 is not the ABA Model Rule 5.5. Wisconsin’s MJP rule includes provisions excepting Wisconsin attorneys from discipline when their conduct in another jurisdiction conforms with Wisconsin’s Rule 5.5. Attorneys licensed in other jurisdictions must also designate the Clerk of the Wisconsin Supreme Court as an agent for service for actions arising out of the attorney’s conduct in Wisconsin.

Wisconsin 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, except Wisconsin attorneys do not violate Rule 5.5 through conduct in another jurisdiction that is permitted in Wisconsin under Rule 5.5(c) and (d) for attorneys not admitted in Wisconsin. Out-of-state attorneys cannot establish an office or other systematic and continuous presence in Wisconsin for the practice of law and cannot represent or hold himself of herself out to the public as being admitted to practice in Wisconsin.

Comment 4 states presence may be systematic and continuous even if the attorney is not physically present in Wisconsin.

For practice under 5.5(c) (Occasional Practice) or 5.5(d) (House Counsel and Practice Authorized by Law), attorneys must consent to the appointment of the Clerk of the Wisconsin Supreme Court as agent upon whom service of process may be made for all actions against the attorney or the attorney’s firm that may arise out of the attorney’s participation in the legal matters in Wisconsin. The following comments also apply to practice authorized by 5.5(c) and (d):

Comment 19 and RPC 8.5(a) subject attorneys to the disciplinary authority of Wisconsin.

Comment 20 provides that, in some circumstances, attorneys may have to inform the client that the attorney is not licensed to practice law in Wisconsin. An example includes when the representation occurs primarily in Wisconsin and requires knowledge of Wisconsin law.

Comment 21 does not authorize communications that advertise legal services to prospective clients in Wisconsin by attorneys admitted in other jurisdictions.

Occasional Practice

Comment 6 states that there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Wisconsin. Services may be “temporary” even though the attorney provides services in Wisconsin 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 occasional practices include:

Pro Hac Vice. Legal services that are undertaken in association with a lawyer who is admitted to practice in Wisconsin 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 Wisconsin or another jurisdiction, if the attorney is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized. (5.5(c)(2)).

Comment 9 states that to the extent that a Wisconsin 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 Wisconsin.

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 Wisconsin 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 Wisconsin 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 relate to the attorney’s practice in a jurisdiction where the attorneys is admitted. (5.5(c)(4)).

Comment 13 states that this rule covers practice that is not within (c)(2) and (c)(3). 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 Counsel

House attorneys may practice under the Wisconsin House Counsel Rules. Wisconsin’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 Wisconsin. Wisconsin’s MJP Rule 5.5(d) coincides with SCR 10.03(4) and the house counsel registration requirement.

Attorneys may provide legal services to the attorney’s employer or its organizational affiliates after compliance with SCR 10.03(4)(f) of the Wisconsin House Counsel Rules so long as the legal services are not those for which a forum requires Wisconsin 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 Wisconsin authorized by Wisconsin 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 Wisconsin.

Comment 18 includes statutes, court rules, executive regulations, or judicial precedents.

RULE 8.5 (Disciplinary Authority; Choice of Law)

Wisconsin’s MJP Rule 8.5 is not the ABA Model Rule 8.5 and contains different language and additional provisions.

Disciplinary Authority. A lawyer admitted to practice in Wisconsin is subject to the disciplinary authority of Wisconsin, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Wisconsin is also subject to the disciplinary authority of Wisconsin if the lawyer provides or offers to provide any legal services in Wisconsin. A lawyer may be subject to the disciplinary authority of both Wisconsin and another jurisdiction for the same conduct. (8.5(a)).

Comment 1 states reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purpose of the rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the disciplinary authority of Wisconsin under Rule 8.5(a) appoints an official to be designated by the Wisconsin Supreme Court to receive service of process in Wisconsin. The fact that the lawyer is subject to the disciplinary authority of Wisconsin may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.

Choice of Law. The Wisconsin Rules of Professional Conduct are applied as follows:

For conduct in connection with a matter pending before a 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:

If the lawyer is licensed to practice only in Wisconsin, the Wisconsin rules apply. (8.5(b)(2)(i)).

If the lawyer is licensed to practice in Wisconsin and another jurisdiction, the rules are those of the admitting jurisdiction where the lawyer principally practices. Except that if the particular conduct clearly has its predominant effect in another jurisdiction where the lawyer is licensed to practice, the rules of that jurisdiction apply to that conduct. (8.5(b)(2)(ii).

If the lawyer is admitted in another jurisdiction and is providing legal services in Wisconsin as allowed under these rules, the Wisconsin rules apply. (8.5(b)(2)(iii).

A lawyer is not be subject to discipline if his or her 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(c)).

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)(2) 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 all other conduct not pending before a tribunal, including conduct in anticipation of a proceeding not yet pending before a tribunal, subjects the lawyer to (b)(2). For conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits, or in another jurisdiction.

Comment 5 states that when a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one where the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes the predominant effect will occur, the lawyer will not be subject to discipline under this Rule.

Comment 6 states that if two admitting jurisdictions were to proceed against a lawyer for the same conduct, the jurisdictions should, applying this rule, identify the same governing ethics rules. The jurisdictions should take all appropriate steps to see that they apply the same rule to the same conduct, 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.