At My Shingle, Carolyn Elefant gives the ABA 20/20 Commission a piece of her mind about their completely ignoring her comments in the consideration of changes to accommodate the Brave New World of jurisdiction under Model Rule 5.5 dealing with the Unauthorized Practice of Law.

So imagine my dismay when I saw that the Committee’s most recent release entitled Issues Paper Concerning Model Rule of Professional  Conduct 5.5 and the Limits on Virtual Presence in a Jurisdiction  seeking comment on an appropriate standard for determining whether a lawyer’s out of state presence in another jurisdiction is so “systematic and continuous” as to justify licensing.  As I’ll discuss, the Committee completely disregarded the very reasonable approach that I proposed   here  which (1) would have ensured that lawyers with a physical presence and virtual presence are treated on equal footing for purposes of UPL and (2) reflects a bright-line, easy test rather than another loosey-goosey, ambiguous balancing test.

While Carolyn uses the example of a lawyer, whose office is near a state border, doing wills for people from the adjacent state. she notes that the concern arose from the birth of virtual law offices, lawyers who are everywhere and nowhere, and for whom jurisdiction and admission are quaint concepts.

For those unaware (and who believe that any issue that doesn’t smack them square in the chops doesn’t exist and isn’t worth their concern), technology has caused two monumental changes that either have or will affect most lawyers and clients in a decidedly problematic way.  First, young lawyers do not perceive a justification for the current concept that admission in a particular state should limit their ability to practice wherever they please.  Not only do they argue that admission should be national, but they largely ignore Rule 5.5 issues because they believe it’s wrong and, well, they shouldn’t have to comply. 

The second problem is that in the process of pursuing life, liberty and happiness, they are up late at night writing things on the internet that is not merely designed to poach clients by promises of cut rate pricing and easy-peasy accommodation, but substantially misinforms clients of their rights and responsibilities under the law.  In part, it’s because they’re young and clueless. In part, it’s because their advice might work in Nebraska, but it’s being read by clients in Louisiana.  And since they eschew the limits of jurisdiction, they make no bones about being national in their advice, even though they’re just plain wrong.

The crux of Carolyn’s complaint is that the 20/20 Commission’s focus is on dealing with the blight of lawyers who disrespect jurisdiction, and thus boldly ignore proscriptions on unauthorized practice.  The ABA’s newfound love of tech, in its effort to be cool, relevant and keep at least 27 members going into the next decade,

But what bugged me when I filed my original comments on Model Rule 5.5 was the proposal to make exceptions to the systematic and continuous rule for virtual practice but not for brick-and-mortar practitioners.   Under both the current and proposed Model Rule 5.5., Annie Attorney, also a Massachusetts-only lawyer, is barred from opening a branch office in Concord, NH and meeting with clients three days a week even if she limits her practice to Massachusetts-only matters (that’s because an office is presumptively considered a “systematic and continuous presence.”  So why should Laura Lawyer be given a pass and allowed to represent New Hampshire clients on Massachusetts issues if she serves clients online from her basement in her Boston apartment?  The answer:  she shouldn’t.

Note: Despite Carolyn’s implications to the contrary, I do not believe she means to suggest that only women lawyers are unethical or engage in criminal conduct.

To the extent that there’s something amiss when the model rules contemplate a carve-out for virtual lawyers that would give them an advantage over brick-and-mortar lawyers, Carolyn’s argument is well taken. The same rationale applies to all lawyers, and the absence of an office doesn’t make you competent to practice in jurisdictions where you aren’t admitted.

But these efforts at “solving” the problem is to facilitate a downward trend, watering down the proscription for the benefit of lawyers at the expense of clients.  The argument boils down to “if a virtual lawyer can provide incompetent legal services outside her jurisdiction, why can’t I?”

Sure, there are practice areas where jurisdictional competence doesn’t apply. Transaction work, regulatory practice, even federal trial practice to some extent. But there are similarly practice areas where jurisdiction is critically important, as state law and practice varies markedly. Yes, a competent lawyer can usually figure out how to work another state’s law with some research and a few phone calls, but they don’t have the answers at their fingertips and may not realize that a distinction exists requiring them to find out what they don’t know.

As long as states get to pass their own laws, and their courts get to regulate their own practice, jurisdiction counts. The virtual lawyer’s argument that they can handle anything (at half the price) may play to the crowd, but we know it’s not true. 

In the age of the internet, we are all each other’s next door neighbor, like it or not. As far as clients are concerned, they can just as easily email the lawyer across town as across the country.  When I get an email from someone in Des Moines, I explain that I am not admitted to practice there, don’t know the law and can’t give them an answer to their question.  Frankly, it would be awfully easy to do a telephone consultation for a “reasonable” internet fee, making a quick buck at the expense of their lives. I could, but I can’t because it would violate my ethical proscription, and more importantly, my rule of not making anyone stupider.

But then, my practice isn’t based on ignoring jurisdiction, making the internet love me in the hope that Ma and Pa Kettle have a valid credit card and having no concern whatsoever for making sure my advice is sound.  It appears that the ABA doesn’t share my view, and that we may soon have virtual ethics to go along with virtual lawyers.  And as Carolyn properly argues, once the proscription against unauthorized practice falls online, it’s only fair that all lawyers get to be similarly incompetent. 

Howdy neighbor.