Supreme Court Rule 3.130 (5.5) (Unauthorized Practice of Law; MJP Practice of Law) and Supreme Court Rule 3.130 (8.5) (Disciplinary Authority; Choice of Law) of the Kentucky Rules of Professional Conduct encompass the Multijurisdictional Practice Rules (MJP) in Kentucky (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 Kentucky 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 Kentucky 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 Kentucky on a temporary basis and to practice as Kentucky 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 presence in Kentucky for the practice of law and cannot represent or hold himself or herself out to the public as being admitted to practice in Kentucky.
Out-of-state attorneys are subject to the Kentucky Rules of Professional Conduct and must comply with the Kentucky Pro Hac Vice Rules. If the legal practice does not require pro hac vice admission, attorneys must actively participate in, and assume responsibility for, the representation of the client.
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 Kentucky. Services may be “temporary” even though the attorney provides services in Kentucky 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 Kentucky House Counsel Rules, which are referenced in Kentucky’s MJP rule, and exempt house attorneys from the unauthorized practice of law and the prohibition against establishing an office or presence in Kentucky. (Comment 5).
Comment 15 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 and others who are employed to render legal services to the employer.
Attorneys may also render services in Kentucky authorized by Kentucky or federal law. (5.5(d)(2)). Practice under this MJP rule exempts attorneys from the prohibition against establishing an office or presence in Kentucky.
Disciplinary Authority. A lawyer admitted to practice in Kentucky is subject to the disciplinary authority of Kentucky, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Kentucky is also subject to the disciplinary authority of Kentucky if the lawyer provides or offers to provide any legal services in Kentucky. A lawyer may be subject to the disciplinary authority of both Kentucky and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The Kentucky 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)).