Rule 5.5 (Unauthorized Practice of Law) and Rule 8.5 (Jurisdiction) of the Alabama Rules of Professional Conduct encompass the Multijurisdictional Practice Rules (MJP) in Alabama. 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 Alabama without engaging in the unauthorized practice of law. Rule 8.5 recognizes that modern practice may result in Alabama attorneys practicing outside of Alabama. Such attorneys remain subject to the Alabama Rules of Professional Conduct.
Rule 5.5 (Unauthorized Practice of Law)
Rule 5.5 and the applicable comments allow attorneys licensed in other jurisdictions to engage in certain temporary or incidental legal practices in Alabama without engaging in the unauthorized practice of law. Out-of-state attorneys cannot establish an office or other systematic and continuous presence in Alabama for the practice of law and cannot represent or hold himself of herself out to the public as being admitted to practice in Alabama.
Alabama’s MJP Rule 5.5 is not the ABA Model Rule 5.5 and contains different language and provisions.
Alabama 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.
Temporary Practice
The temporary or incidental practice rules are subject to the requirements of Rule VII (Alabama Pro Hac Vice). Attorneys not admitted in Alabama but who are admitted in another United States jurisdiction, and who are not disbarred or suspended, do not engage in the unauthorized practice of law when the attorney represents a client on a temporary or incidental basis in Alabama. The temporary or incidental services include:
- Nonlitigation Services. Transactional, counseling, or other nonlitigation services that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction where the lawyer is admitted to practice. (5.5(b)(1)).
- ADR. Legal services that are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding held or to be held in Alabama or another jurisdiction. (5.5(b)(2).
The Comment to Rule 5.5 states that the provisions of 5.5(b)(1) and (2) are intended to permit a lawyer admitted and in good standing in another jurisdiction to perform services incidental to matters that form part of his or her “home” practice. This practice includes taking depositions related to a case pending elsewhere, interviewing witnesses, recording deeds on Alabama property, preparing estate or trust documents that include Alabama property, obtaining document signatures or affidavits effecting transactions elsewhere. The services are to be distinguished from systematic or continuous representation, carrying out transactions, or representing clients wholly within this State.
The Comment also states that Alabama’s Rule 5.5 contains some similar provisions to the model ABA rule. The ABA’s published commentary on Rule 5.5 of the Model Rules of Professional Conduct may be helpful in interpreting Rule 5.5(b) to the extent the two rules contain similar provisions.
House Counsel
House attorneys may practice under the Alabama House Counsel Rules. Alabama’s MJP Rule allowing temporary or incidental practice also authorizes house counsel practice and exempts such practice from the unauthorized practice of law.
- House Counsel. Practice that is performed by an attorney admitted as an authorized Alabama House Counsel attorney under Rule IX and who is performing those services as defined in that rule. (5.5(b)(3)).
Practice Authorized By Law
Attorneys licensed in other jurisdictions may also render services in Alabama that are authorized by Alabama law or court rule or federal law. (5.5(c)).
RULE 8.5 (Jurisdiction)
Alabama’s MJP Rule 8.5 is not the ABA Model Rule 8.5 and contains different language and provisions. Alabama’s Rule 8.5 states:
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, although engaged in practice elsewhere. (AL RPC 8.5).
The Comment to Rule 8.5 states that in modern practice lawyers frequently act outside the territorial limits of the jurisdiction where they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction where they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction. See Rule 5.5.
If the rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction.
Where the lawyer is licensed to practice law in two jurisdictions that impose conflicting obligations, applicable rules of choice of law may govern the situation. A related problem arises with respect to practice before a federal tribunal, where the general authority of the states to regulate the practice of law must be reconciled with such authority as federal tribunals may have to regulate practice before them.