Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Maryland Rules of Professional Conduct encompass the MJP rules in Maryland (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 Maryland 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 Maryland 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 Maryland on a temporary basis and to practice as Maryland House Counsel. Attorneys must be on active status. (Comment 7).
Maryland’s MJP Rule 5.5 is the ABA Model Rule 5.5.
Maryland 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 Maryland for the practice of law and cannot represent or hold himself of herself out to the public as being admitted to practice in Maryland.
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 Maryland. Services may be “temporary” even though the attorney provides services in Maryland 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 Maryland 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 Maryland 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 Maryland 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 Maryland 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 related 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 Maryland House Counsel Rules. Maryland’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 Maryland.
- 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 Maryland 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 Maryland authorized by Maryland 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 Maryland.
RULE 8.5 (Disciplinary Authority; Choice of Law)
Maryland’s Rule 8.5 is not the ABA Model Rule 8.5 but contains similar provisions.
Disciplinary Authority. A lawyer admitted to practice in Maryland is subject to the disciplinary authority of Maryland, regardless of where the lawyer’s conduct occurs. (8.5(a)(1)).
A lawyer not admitted in Maryland is also subject to the disciplinary authority of Maryland if the lawyer provides or offers to provide any legal services in Maryland, holds himself or herself out as practicing law in Maryland, or has an obligation to supervise or control another lawyer practicing law in Maryland whose conduct constitutes a violation of the rules. (8.5(a)(2)).
Lawyers may be subject to the disciplinary authority of both Maryland and another jurisdiction for the same conduct. (8.5(a)(3)).
Choice of Law. The Maryland 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)).