Rule 5.5 (Lawyers Not Admitted to the Bar of this State and the Lawful Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the New Jersey Rules of Professional Conduct encompass the MJP rules in New Jersey (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 New Jersey 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 New Jersey admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
RULE 5.5 (Lawyers Not Admitted to the Bar of this State and the Lawful Practice of Law)
Rule 5.5, particularly 5.5(b), allows active attorneys licensed in another state, territory of the United States, Puerto Rico, or the District of Columbia to practice in New Jersey and to practice as New Jersey House Counsel. Attorneys must be licensed and in good standing in all jurisdictions where admitted and not the subject of any pending disciplinary proceeding or current or pending license suspension or disbarment.
New Jersey’s Rule 5.5 is not the ABA Model Rule 5.5 and contains different language and provisions.
New Jersey MJP 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 practicing under this MJP rule are subject to the New Jersey Rules of Professional Conduct and must consent, and designate in writing on an approved form, to the appointment of the Clerk of the New Jersey Supreme Court as agent upon whom service of process may be made for all actions against the lawyer or the lawyer’s firm that arise out of the lawyer’s participation in legal matters in New Jersey. Attorneys engaged in ADR proceedings or Investigation and Discovery are deemed to have consented to the appointment without completing the form.
An out-of-state attorney cannot hold himself or herself out as being admitted to practice law in New Jersey. Attorneys must maintain a bona fide office in compliance with Rule 1:21-1(a). Attorneys admitted pro hac vice are allowed to maintain a bona fide office within the law office of the local New Jersey attorney. Except for attorneys engaged in an ADR proceeding or Investigation and Discovery, out-of-state attorneys engaged in a permitted
practice must annually register with the New Jersey Lawyers’ Fund for Client Protection and comply with Rule 1:20-1(b) and (c), Rule 1:28-2, and Rule 1:28B-1(e) during the period of practice.
Permitted Practices
New Jersey allows the following practices for out-of-state attorneys that are not admitted in New Jersey. Attorneys must designate the Clerk for service. Forms can be found on the New Jersey Board of Bar Examiners’ Website under Admitted Attorneys.
- Pro Hac Vice. The lawyer is admitted to practice Pro Hac Vice pursuant to R. 1:21-2 or is preparing for a proceeding where the lawyer reasonably expects to
be so admitted and is associated in that preparation with a lawyer admitted to practice in New Jersey. (5.5(b)(1)).
- Transactional Practice. The lawyer engages in negotiation of the terms of a transaction in furtherance of the lawyer’s representation on behalf of an existing client in a jurisdiction in which the lawyer is admitted to practice and the transaction originates in or is otherwise related to a jurisdiction in which the lawyer is admitted to practice. (5.5(b)(3)(i)).
- ADR. The lawyer represents a party by participating in arbitration, mediation, or other alternate or complementary dispute resolution program and the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted and are not services that require New Jersey Pro Hac Vice admission. (5.5(b)(3)(ii).
- Investigation and Discovery. The lawyer investigates, engages in discovery, interviews witnesses, or deposes witnesses in New Jersey for a proceeding pending or anticipated to be instituted in a jurisdiction where the lawyer is admitted. (5.5(b)(3)(iii).
- Associating with a New Jersey Attorney. The lawyer associates in a matter with a lawyer admitted to the New Jersey Bar who is responsible for the conduct of the out-of-state lawyer in the matter. (5.5(b)(3)(iv).
- Practice Arising Out Of the Attorney’s Home Jurisdiction Practice. The lawyer’s practices are not within paragraphs (i) through (iv) but involve a matter where the practice activity arises directly out of the lawyer’s representation on behalf of an existing client in a jurisdiction where the lawyer is admitted to practice. The practice in New Jersey must only be occasional and undertaken only when the lawyer’s disengagement would result in substantial inefficiency, impracticality, or
detriment to the client. (5.5(b)(3)(v).
House Counsel
House attorneys may practice under the New Jersey House Counsel Rules. (5.5(b)(2)).
RULE 8.5 (Disciplinary Authority; Choice of Law)
New Jersey’s Rule 8.5 is substantially similar to the ABA Model Rule 8.5 but does not contain a provision relating to the attorney’s reasonable belief of where his or her conduct will occur.
Disciplinary Authority. A lawyer admitted to practice in New Jersey is subject to the disciplinary authority of New Jersey, regardless of where the lawyer’s conduct occurs.
A lawyer not admitted in New Jersey is also subject to the disciplinary authority of New Jersey if the lawyer provides or offers to provide any legal services in New Jersey. A lawyer may be subject to the disciplinary authority of both New Jersey and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The rules of professional conduct should be 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. (8.5(b)(2)).