Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Jurisdiction) of the North Dakota Rules of Professional Conduct encompass the Multijurisdictional Practice Rules (MJP) in North Dakota (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 harbor provisions for legal practices that out-of-state attorneys may perform in North Dakota without engaging in the unauthorized practice of law. Rule 8.5 recognizes that modern practice results in attorneys practicing outside of their licensed jurisdiction and subjects attorneys licensed outside of North Dakota, but practicing within North Dakota, to the North Dakota disciplinary rules.
Rule 5.5 and the applicable comments allow attorneys licensed in other jurisdictions to engage in certain temporary legal practices in North Dakota without engaging in the unauthorized practice of law and to practice as North Dakota House Counsel.
North Dakota’s MJP Rule 5.5 is not the ABA Model Rule 5.5 and contains different language and provisions. Attorneys participating in Alternative Dispute Resolution proceedings must register under the ADR rules that are included in North Dakota House Counsel section.
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. Attorneys not admitted to practice in North Dakota cannot represent or hold himself or herself out to the public that the attorney is admitted to practice in North Dakota. Attorneys must disclose in writing to the client that the attorney is not licensed in North Dakota when practicing under the MJP temporary practice rules or the MJP house counsel rules. (5.5(d)).
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 attorneys are not permitted to establish an office or other permanent presence in North Dakota when practicing under the temporary MJP rules, and attorneys cannot solicit clients in North Dakota.
The temporary practices include:
Comment 4 states this rule is intended to provide broad protection to practices in North Dakota that are related to the attorney’s home state. This includes negotiations, contracts, depositions, discovery, witness interviews, and meetings with the client or other parties. This rule does not cover transactions that are pending or substantially relate to North Dakota, which requires admission or association with a licensed North Dakota attorney as co-counsel in the representation of the client in the transaction (see below).
Comment 5 states that this rule applies to attorneys engaging in prepatory matters before pro hac vice admission but when pro hac vice admission is reasonably expected. This may include factual investigations and discovery.
Comment 6 states that the North Dakota attorney may not serve merely as a conduit for the out-of-state attorney but must actively participate in and share actual responsibility for the representation of the client. Both attorneys are subject to discipline if the North Dakota attorney’s involvement in merely pro forma.
Comment 7 provides an example of service when a non-lawyer serves as a mediator or arbitrator in a private alternative dispute resolution or when a non-lawyer is permitted to appear in some administrative proceedings. The rules protect the public from the over-arching provisions of Rule 8.5 subjecting all attorneys to the Rules of Professional Conduct. However, if an out-of-state attorney performs as a neutral in violation of the Rules of Professional Conduct, the attorney may be disciplined for misconduct even though serving as the neutral was not the unauthorized practice of law under the MJP rules. Out-of-state attorneys who represent clients in ADR proceedings pending in another jurisdiction are not engaged in the unauthorized practice of law, but out-of-state attorneys representing clients in ADR proceedings in North Dakota must register under the rules located in the North Dakota House Counsel Rules.
House attorneys may practice under the North Dakota House Counsel Rules. The MJP rule coincides with the house counsel rules and exempts attorneys registered under the house counsel rules from the unauthorized practice of law.
Attorneys admitted in other jurisdictions may practice as house counsel on a temporary basis under the MJP Rule 5.5(b)(1) and may establish an office or a presence that is other than temporary in North Dakota without engaging in the unauthorized practice of law in North Dakota under MJP Rule 5.5(c)(1).
Comment 3 states that this rule permits in-house corporate counsel and government attorneys to represent their employers and commonly owned affiliates on a temporary basis without being admitted to the North Dakota Bar. The rule does not cover appearances in court where pro hac vice admission is required.
Attorneys may also render services in North Dakota pursuant to other authority granted by federal law or a North Dakota law or Court rule. (5.5(c)(2)).
Disciplinary Authority. A lawyer admitted to practice in North Dakota is subject to the disciplinary authority of North Dakota even though the lawyer’s conduct giving rise to the discipline may have occurred outside of North Dakota and even when that conduct may subject or has subjected the lawyer to discipline by another jurisdiction. (8.5(a)).
Choice of Law. Persons not licensed to practice law in this jurisdiction, but eligible to practice elsewhere who actually engage in this jurisdiction in the practice of law, are subject to the disciplinary authority of this jurisdiction. (8.5(b)).
Comment 1 states that when attorneys practice outside of the territorial limits of the jurisdiction where the attorney is licensed, they remain subject to the governing authority in their licensed jurisdiction and may also become subject to the authority of another jurisdiction. When North Dakota exercises its authority over persons eligible to practice in other jurisdictions but not eligible in North Dakota, and those attorneys are practicing without a special license or certificate of admission allowing the practice in North Dakota, the disciplinary authority may enter findings of violations of these rules. The disciplinary authority may enter, as relief, prohibitions from applying for admission in North Dakota, pro hac vice or otherwise, for a period, and report the action to the jurisdiction where the attorney is eligible to practice.
Comment 2 states that lawyers not licensed in North Dakota may lawfully practice in North Dakota within the safe harbors of Rule 5.5 or when registered or admitted Pro Hac Vice pursuant to applicable rules. Lawyers admitted in that limited manner are not licensed to practice law in North Dakota but are subject to discipline in North Dakota.