Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Jurisdiction) of the Florida Rules of Professional Conduct encompass the MJP rules in Florida (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 Florida 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. Attorneys should consult both of the MJP rules, as well as the other Florida 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 the 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, and who have not been disciplined or held in contempt in Florida by reason of misconduct committed while engaged in the practice of law permitted by the MJP rules, to practice in Florida on a temporary basis. Attorneys must be on active status. (Comments).
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 regular presence in Florida for the practice of law and cannot represent or hold himself of herself out to the public as being admitted to practice in Florida. Attorneys also cannot appear in court, before an administrative agency, or before any other tribunal unless authorized to do so by the applicable court, administrative agency, or tribunal rules.
The Comments state that regardless of whether the lawyer is admitted to practice law on a regular basis or is practicing as the result of an authorization granted by court rule, order, or by the law, the lawyer must comply with the standards of ethical and professional conduct set forth in the Florida Rules Regulating the Florida Bar.
The Comments state that attorneys may establish a presence in violation of the rules even if the attorney is not physically present in Florida.
The Comments state that any contempt order must be final and not reversed or abated.
For practice under 5.5(c) (Temporary Practice), the following comments apply:
The Comments subject attorneys to the disciplinary authority of Florida. Attorneys must also inform the client that he or she is not licensed to practice in Florida.
The Comments forbid attorneys to advertise in Florida for legal services that the attorney is not authorized to provide.
The Comments state that there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Florida. Services may be “temporary” even though the attorney provides services in Florida 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:
The Comments state that the lawyer admitted to practice in Florida cannot serve merely as a conduit for the out-of-state lawyer, but the Florida lawyer must share actual responsibility for the representation and actively participate in the representation. To the extent that a Florida court rule or other law of Florida requires an out-of-state attorney to obtain pro hac vice admission before appearing before a tribunal, the attorney must obtain that authority.
The Comments reiterate that to the extent that a Florida court rule or other law of Florida requires an out-of-state attorney to obtain pro hac vice admission before appearing before a tribunal, the attorney must obtain that authority.
The Comments provide examples such as meeting with the client, interviewing potential witnesses, and reviewing documents. Similarly, out-of-state attorneys may engage in temporary conduct with pending litigation in another jurisdiction where the attorney reasonably expects to be authorized to appear. This conduct includes taking depositions in Florida.
The Comments require attorneys to obtain pro hac vice admission for court-annexed arbitrations, mediations, or if court rules or law otherwise require. Lawyers must file a verified statement with the Florida Bar in arbitration proceedings as required by Rule 1-3.11 unless the lawyer is appearing in an international arbitration as defined by the comment to that rule. A verified statement is not required if the lawyer first obtained the court’s permission to appear pro hac vice and the court has retained jurisdiction over the matter. For the purposes of this rule, a lawyer who is not admitted to practice law in Florida who files more than 3 demands for arbitration or responses to arbitration in separate arbitration proceedings in a 365-day period shall be presumed to be providing legal services on a regular, not temporary, basis. This presumption does not apply to a lawyer appearing in international arbitrations as defined in the comment to rule 1-3.11.
*The Comments provide factors for determining when services arise out of or reasonably relate to the attorney’s home jurisdiction practice. The factors include situations where the attorney may have previously represented the client, or the client was a resident in, or has substantial contacts with, the jurisdiction where the attorney is admitted.
The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the attorney’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of with the attorney’s home jurisdiction. The client’s activities or the legal issues may also involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their attorney in assessing the relative merits of each. In addition, the services may draw on the attorney’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
The Comments state that these services include both legal services and services that non-attorneys may perform but that are considered the practice of law when performed by attorneys.
*The Comment above also applies to (c)(4).
Rule 8.5 states: A lawyer admitted to practice in Florida is subject to the disciplinary authority of Florida although engaged in practice elsewhere.
The Comments state that in modern practice lawyers frequently act outside of the jurisdiction where they are licensed. Lawyers remain subject to the governing authority of the jurisdiction where they are licensed to practice. If the practice in another jurisdiction is substantial and continuous, it may constitute the practice of law in that jurisdiction.
The Comments state that if the rules of professional conduct differ, conflict of law principles apply. Similar problems arise when the lawyer is licensed in more than one jurisdiction.
The Comments state that when the lawyer is licensed to practice law in two jurisdictions that impose conflicting obligations, the 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.