Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Delaware Rules of Professional Conduct encompass the Multijurisdicitional Practice Rules (MJP) in Delaware (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 Delaware 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 Delaware admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
Rule 5.5, particularly 5.5(c) and (d), and 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 Delaware on a temporary basis and to practice as Delaware House Counsel. Attorneys must be on active status. (Comment 7).
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 Delaware for the practice of law and cannot represent or hold himself or herself out to the public as being admitted to practice in Delaware.
For practice under 5.5(c) (Temporary Practice) or 5.5(d) (House Counsel and Practice Authorized by Law), the following comments apply:
Comment 6 states that there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Delaware. Services may be “temporary” even though the attorney provides services in Delaware 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:
House attorneys may practice under the Delaware House Counsel Rules. Delaware’s MJP rule also exempts registered house attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and continuous presence in Delaware.
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.
Attorneys may also render services in Delaware authorized by Delaware 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 Delaware.
Disciplinary Authority. A lawyer admitted to practice in Delaware is subject to the disciplinary authority of Delaware, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Delaware is also subject to the disciplinary authority of Delaware if the lawyer provides or offers to provide any legal services in Delaware. A lawyer may be subject to the disciplinary authority of both Delaware and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The Delaware 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, the applicable rules are those of the jurisdiction where the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction will be applied to the conduct. 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)).