Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the North Carolina Rules of Professional Conduct encompass the MJP rules in North Carolina (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 North Carolina 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 North Carolina admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
Rule 5.5, the applicable comments, and ethical opinion notes allow attorneys licensed in other jurisdictions to engage in certain temporary legal practices in North Carolina without engaging in the unauthorized practice of law and to practice as North Carolina House Counsel.
North Carolina’s Rule 5.5 is not the ABA Model Rule 5.5. The MJP rule includes provisions allowing the practice of certain areas of the law (federal, international, and the attorney’s home jurisdiction) and practice while the attorney’s North Carolina Admission on Motion application is pending.
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 North Carolina for the practice of law and cannot hold him or herself out to the public or otherwise represent that the attorney is admitted to practice in North Carolina.
Comment 1 states that this general prohibition of violating the lawyer-licensing standards does not restrict the ability of attorneys authorized by federal statute or other federal law to represent the interests of the United States or other person in any jurisdiction.
Comment 2 states that presence may be systematic or continuous even if the attorney is not physically present in North Carolina. Attorneys admitted in another jurisdiction who are partners, shareholders, or employees of an interstate or international law firm that is registered with the North Carolina State Bar through 27 N.C.A.C. 1E, § .0200 may practice in the North Carolina offices of such a law firm subject to the limitations of these rules.
The temporary practice includes:
Comment 3 cites examples of actions that are in anticipation of a proceeding. They include hearings, factual investigations, and discovery conducted in connection with a litigation or administrative proceeding. Attorneys cannot solicit clients in North Carolina.
Unless governed by the above MJP rule 5.5(c)(1), which applies to pro hac vice admission or the reasonable expectation of being admitted pro hac vice, attorneys may engage in the following practices:
Comment 5 cites examples such as negotiations with private parties, negotiations with government officers or employees, participation in ADR procedures, and when conducting witness interviews in North Carolina to prepare for litigation occurring in another jurisdiction where the attorney is admitted or expects to be admitted pro hac vice.
Comment 6 states that attorneys must obtain pro hac vice admission for court-annexed arbitrations, mediations, or if otherwise required by the court rules or law.
Comment 7 states that the North Carolina attorney cannot merely serve as a conduit for an out-of-state attorney but must actively participate in and share actual responsibility for the client. Both attorneys are subject to discipline if the attorney’s involvement is merely pro forma.
Attorneys must also:
Attorneys may establish an office or other systematic and continuous presence in North Carolina but cannot provide services that require North Carolina Pro Hac Vice admission. Attorneys are ineligible to practice in North Carolina immediately upon notice that the comity application has been denied.
The North Carolina House Counsel Rules govern corporations and the practice of law in a general manner. The MJP Rules allow attorneys to practice as house counsel and to establish an office or other systematic and continuous presence in North Carolina.
Disciplinary Authority. A lawyer admitted to practice in North Carolina is subject to the disciplinary authority of North Carolina, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in North Carolina is also subject to the disciplinary authority of North Carolina if the lawyer provides or offers to provide any legal services in North Carolina. A lawyer may be subject to the disciplinary authority of both North Carolina and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The North Carolina 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)).
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 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.