Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Illinois Rules of Professional Conduct encompass the MJP rules in Illinois. 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 Illinois 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 Illinois admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
RULE 5.5 (Unauthorized Practice of Law; MJP 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 Illinois on a temporary basis and to practice as Illinois House Counsel. Attorneys must be on active status. (Comment 7).
Illinois’s MJP Rule 5.5 is the ABA Model Rule 5.5.
Illinois 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. Out-of-state attorneys cannot establish an office or other systematic and continuous presence in Illinois for the practice of law and cannot represent or hold himself of herself out to the public as being admitted to practice in Illinois.
For practice under 5.5(c) (Temporary Practice) or 5.5(d) (House Counsel and Practice Authorized by Law), the following comments apply:
Temporary Practice
Comment 6 states that there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Illinois. Services may be “temporary” even though the attorney provides services in Illinois 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:
- Pro Hac Vice. Legal services that are undertaken in association with a lawyer who is admitted to practice in Illinois and who actively participates in the matter. (5.5(c)(1)).
- Reasonable Expectation of Pro Hac Vice Admission. Legal services that are in or reasonably related to a pending or potential proceeding before a tribunal in Illinois or another jurisdiction, if the attorney is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized. (5.5(c)(2)).
- ADR. Legal services that are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in Illinois or another jurisdiction. The services must arise out of or reasonably relate to the attorney’s practice in a jurisdiction where the attorney is admitted to practice and the services do not require Illinois Pro Hac Vice admission. (5.5(c)(3)).
- Practice with a Reasonable Relation to the Attorney’s Home Jurisdiction Practice. Legal services that are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably relate to the attorney’s practice in a jurisdiction where the attorney is admitted. (5.5(c)(4)).
House Counsel
House attorneys may practice under the Illinois House Counsel Rules. Illinois’s MJP rule also exempts house attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and continuous presence in Illinois.
- Attorneys may provide legal services to the attorney’s employer or its organizational affiliates so long as the legal services are not those for which a forum requires Illinois Pro Hac Vice admission. (5.5(d)(1)).
Comment 16 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, government attorneys, and others who are employed to render legal services to the employer.
Practice Authorized By Law
Attorneys may also render services in Illinois authorized by Illinois or federal law. (5.5(d)(2)). Practice under this MJP rule exempts attorneys from the prohibition against establishing an office or other systematic and continuous presence in Illinois.
RULE 8.5 (Disciplinary Authority; Choice of Law)
Illinois’s MJP Rule 8.5 is the ABA Model Rule 8.5.
Disciplinary Authority. A lawyer admitted to practice in Illinois is subject to the disciplinary authority of Illinois, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Illinois is also subject to the disciplinary authority of Illinois if the lawyer provides or offers to provide any legal services in Illinois. A lawyer may be subject to the disciplinary authority of both Illinois and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The Illinois 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)).