Barred or Barred?

In the Empire State, we refer to lawyers who are authorized to practice law as “admitted.”  Whenever someone used the word “barred,” my mind immediately envisions an iron gate making it impossible to get through.  As in, the lawyer was barred from any public place where pleasant people congregate.

In other locales, the word “barred” means that a person is admitted to the bar. Weird locales to a New York lawyer’s ear.

But what makes it even weirder is when the lawyer refers to those locales as the places where they find and represent clients, even though they are neither admitted nor barred.  That’s because lawyers, whether you like it or not, are only authorized to be lawyers in places where they have been barred. Or admitted, if you come from a place where people don’t talk funny.

This is a fairly fundamental aspect to being a lawyer.  Just as a cop is only a cop in the geographical area of his employment, authorized by law to make split-second decisions that elsewhere would assure him a murder charge, a lawyer can only practice law where the sanctioning authority says he can. Practicing law in places where a lawyer is unauthorized is a pretty clear wrong, much like raiding an escrow account because that new car is calling your name.  Even the ABA, in rule 5.5, admits as much, and they are certainly the last carry the torch of arcane ethical rules.

One would think that the disciplinary authority of jurisdictions where a person engaged in the unauthorized practice of law would take something so obvious pretty seriously.  After all, if they don’t keep a lid on who gets to hang around their jurisdiction claiming to be a lawyer, then what’s to stop anybody from doing so?  And if anybody can do so, then the public would be deceived and led to seek legal advice from people of dubious competence and devoid of ethics, and the bar associations wouldn’t get their dues paid. It would be a disaster all around.

Which led me to ponder the significance of this  description of a law practice.


She is barred to practice law in New York and New Jersey–but she lives in South Dakota with her husband and one year-old daughter. She services clients living everywhere from Bangladesh and Costa Rica to California and Florida.
Nobody is “barred” in New York and New Jersey, where local custom is to call it “admitted,” the first give-away that something is amiss.  The rules of admission, the lawfulness of practicing law if you will, do not seem to strike home here. To add to the issue, New Jersey has rather stringent physical office requirements. A quick click on the New Jersey lawyer registration records puts this lawyer in Phoenix, Arizona, which isn’t too often confused with Fargo.

The notion of authorization to practice law being limited by geography is very old school to new lawyers.  Even the  Cato Institute thinks it’s time to scrap it, if only to reduce lawyers fees by making lawyers compete nationwide.  I’m disinclined to go with the convenient flow on this one, until someone comes up with a way to make lawyers sufficiently competent in the law and procedure of 51 jurisdictions to safeguard clients.  Of course, if the lawyer is sufficiently superficial, then the differences between jurisdictions don’t really matter that much; they are relatively incompetent in all jurisdictions, making the unauthorized practice of law the least of the problems.

The rationale for eschewing such archaic rules as this is two-fold. First, that the internet has changed everything, by making it easy for anyone to promote themselves online to people anywhere and everywhere, and shouldn’t a person be entitled to take money from anyone willing to give it?

The second is that old lawyers, the ones who think there is some merit in ethical rules for lawyers, tend to hate anything new and anyone who has found a better way.  We fear the new, as the young will steal our business by being smarter, cuter, cooler and more cutting edge.  Ethics rules exist to keep them down, to oppress them and prevent them from seizing upon new ideas, new technologies that take away our edge of experience and shift the mojo.  We must hate them for ruining our perfect lawyer world.

It strikes me that while their rationale is silly, as what the post describes as a “successful practice” wouldn’t be sufficient to support my addiction to three regular meals, there is a point to their cutting edge efforts. If it’s cool with the disciplinary authorities in New York, New Jersey, South Dakota, California, Florida and Costa Rica (assuming they have anything remotely similar to what we have), then why shouldn’t this lawyer be able to engage in the unauthorized practice of law?

Either it’s a good rule, in which case the sanctioning bodies need to enforce it, or it’s not, in which case they ought to cross it off the books.  But as long as it remains a basic rule of being a lawyer, some of us will adhere to it because we feel compelled to honor our ethical requirements. 

So which is it, guys?  Am I barred from representing folks any damn place I want or not?  If things like the unauthorized practice of law are too old school to bother with, let’s clear this up and quell the commotion. Either way, get off your tired old butts and deal with this.

28 thoughts on “Barred or Barred?

  1. Marc R.

    I’m not a member of the aba, just local and state bar groups, but perhaps the example you gave has a sound explanation…
    She lives in the Dakotas but commutes to NY/NJ for hearings or otherwise e-files to those states from home. And while her clients are from diverse areas, they all have causes of action or defendants mandating their cases’ proper venue in NY/NJ.
    Or she’s lying and/or she’s violating a plethora of legal and ethical rules.

  2. C. N. Nevets

    I can’t imagine wanting to be represented by a lawyer who was not admitted in my particular state. I’m not even trained in the law and I know several key differences in both law an procedure between my state and a couple of neighboring states. I cannot imagine how many other, potentially even more important, differences there are that I don’t know.

    One of the primary reasons to request counsel is to have guidance from someone who does know those things at greater depth and expertise than you do.

  3. Keith Lee

    Articles like this one are never really clear on what aspect of her business they are talking about – her consulting or her practice.

    I wonder how many of these “clients” are actual legal clients or “social media guru” clients. If she wants to be a lifestyle coach or whatever, more power to her to have clients from all over the globe. But if she wants to be a lawyer, she needs to practice where she is admitted.

    I’m confused as to why people who want to have virtual practices don’t just follow Kimbro’s route of having a virtual practice that focuses on the state in which they are licensed. Lawyers would actually know the law and could compete on price/service – they’d likely get clients who they could ethically, competently help.

    Of course, I’ve been at the office since 7:15 so what do I know.

  4. Alex Bunin

    Don’t get me started on all the arcane New York legal terms and phrases. It’s the only place where lawyers are “on trial” instead of “in trial.” You are barred from complaining how others regions speak.

  5. SHG

    You raise a very interesting point. There is Steph Kimbro, with whom I’ve discussed ethics at length and who has structured her virtual law office in a way that adhere’s strictly to the ethical obligations of a lawyer, and then there are others who are more hype than, well, all hype. 

    Why would anyone want to learn from someone who has accomplished nothing, calls a practice successful when it couldn’t pay the rent on a brick and mortar law office, when there are people like Steph Kimbro around who are the real McCoy?  Much as I have other issues with the Virtual Law Office concept, at least I can respect a lawyer who uses it ethically.

  6. SHG

    You can take the lawyer out of Texas, but you can’t take the Texas out of the lawyer.

    Hicks keep asking me, “don’t you mean ‘in trial’?  Why no, I respond. I do not.

  7. Brett Middleton

    Wait. You mean _My Cousin Vinny_ lied to me about ways and means to ethically (sort of) become authorized to take a case in a jurisdiction where I am not admitted? Well, darn. DARN, I say! If you can’t trust fiction, what CAN you trust? I had figured that I was already more than qualified to pass a bar exam anywhere, based on my ability to imitate Joe Pesci, a lot of blawg reading, and many afternoons spent worshiping at the feet of Judge Judy. In fact, I figured that if I also told them how many times I’ve read _To Kill a Mockingbird_, they’d just admit me without even making me pick up a pencil.

  8. Ron Coleman

    I like “on trial” because, let’s face it, when you’re trying the case, you’re on trial.

    I guess though, Scott, that conceit is a little less compelling in a criminal law practice.

  9. Jordan Rushie

    My two cents…

    Here in Philadelphia there are a lot of unwritten rules. Our Rules of Civil Procedure are also not even close to the federal rules. You can’t depose expert witnesses here, and you can file what is called a “praecipe” to do all kinds of weird stuff. Then, of course, there are local rules, some of which are on paper, some of which “everyone just knows.”

    Pennsylvania is one of the strangest jurisdictions to practice in.

    When you hire a Pennsylvania lawyer, I like to think you are hiring someone who knows all these nuisances. Because a lawyer who knows them all can use them to their advantage. A lawyer who doesn’t can get snagged with procedural problems every easily.

    RPC 5.5 is important until every jurisdiction is the same. Considering it varies from county to freaking county, making you be minimally competent in an entire state is somewhat generous.

  10. SHG

    This is like one of those ad lib games, right?

    Pennsylvania is one of the strangest ___________________.

  11. Noah

    Why should we hold this solo to different standards than we do lawyers at other “international” firms, such as Freshfields, which brags that “more than 30 per cent of our work is typically in countries where we do not have an office.” Nor do NY based and barred lawyers scruple to limit themselves to advising only NY-based companies, or only on NY law. How many transactions are made with only NY lawyers specifying that they are governed by Delaware law? Or conversely, California lawyers advising their tech clients on NY law? I don’t think an opinion letter would excuse what would otherwise be unauthorized practice of law.

    I think we have to assume that the spotlighted lawyer is not advising her California and Florida clients on local wills, etc, as that would clearly be unauthorized practice in those jurisdictions. The Arizona bar cleared her on charges of UPL when she lived there, so we can probably also assume that she is probably not advising South Dakota clients on South Dakota law.

    I’m not sure that your premise that “lawyers, whether you like it or not, are only authorized to be lawyers in places where they have been barred,” is correct.

    Firms such as that above example have NY-barred lawyers based in London, Paris, etc., who do not hold local law licenses. They operate under the fiction that someone in that office who does can oversee the work. But that does not cover the work in areas where they do not have offices. Is it ok for them just because transactional law is different than litigation?

    I’m not sure, but there are certainly litigators who have no problem flying in to other jurisdictions to solicit clients on high-profile cases. How many of OJ’s dream team was barred in California?

    This is not just a virtual practice problem, but also is the subject of a big debate among lawyers who practice only federal law, such as immigration. There are many immigration lawyers not barred in the jurisdiction they have an office in. I think they should be, but that’s just my opinion until the local bars move against them (and frankly, I think they are worse than the lawyer you wrote about, because the bulk of the clients solicited can’t complain to the local bar).

    So all that is to say, that while I agree that a lawyer should have an office somewhere, and be barred in that place, it’s not clear from the article that the lawyer you wrote of does not. The only think the article makes clear is that she lives in a different jurisdiction than she is barred in.

  12. SHG

    Yes, it’s just like Freshfields. Except for the thousand details that make it entirely different. Your argument about immigration lawyers is poorly reasoned. That you think others are worse doesn’t make her better. Your OJ argument is similarly poor, as they were admitted pro hac vice to that court. Line by line, your points fail miserably.

    This seems to be a fairly regular dispute between young lawyers, who see ethics rules as standing in the way of their “innovation,” and older lawyers, who can “afford” to respect the “archaic” rules. You can make any assumptions you find convenient, but it changes nothing.

  13. Noah

    You’ve got to be able to define what you think should be allowed or not in a way that applies to the solo as well as the one in the big firm. Which of the thousand details makes it ok for a NY barred lawyer in Paris to advise a Florida corp on its transaction but not the solo in South Dakota?

    The subject of the article has the benefit of having passed muster after review from one bar. Why were they wrong? And how do they distinguish her practice from those other NY lawyers who will create a Nevada or Delaware corp. for a client who called from Texas?

    The concerns you raised are a major reason NJ created its bona fide office rule (and I don’t know how the article subject meets that rule), but not every state has that rule.

  14. Noah

    I raised the immigration lawyers just to show that there is a whole swath of reasonable people who disagree – and I know for a fact that the Maryland Bar thinks it’s ok. I don’t agree, but I am not a judge on the MD Court of Appeals.

  15. SHG

    It’s all defined, but your insistence that solos be treated like big law firms ignores the definition. There must be admitted lawyers in the firm who are responsible for the firm’s practice in any jurisdiction in which it practices. The solo doesn’t have that, and so the solo doesn’t get to flout the rules because she’s just a solo. It’s not complicated, and trying to complicate it doesn’t change the rules.

    The solo did not quite pass muster. There was never a determination made, but the bar that suggested she was not violating their rules did so because she was living there but not practicing there. Their concern was where she practice, not where she lived. The same could be said if the South Dakota bar took no issue with her because she lives there without being admitted. But she doesn’t claim to practice there, but rather with Florida, California, etc., residents. You appear to be ignoring the details again.

    And nothing distinguishes her from “those other NY lawyers who will create a Nevada or Delaware corp. for a client who called from Texas.” If you know of one, let me know. I don’t.

    It’s pretty straightforward. Be admitted, whether directly or pro hac vice, or have a lawyer in the office who is admitted and responsible. This isn’t rocket science, Noah, but it is ethics.

  16. SHG

    Most immigration lawyers I know have real offices and practice in their admitted jurisdiction. While the argument that it’s all done in immigration court, which is what they might call a “separate jurisdiction” of sorts apart from geographical jurisdictions, it doesn’t make it right. If a state chooses to allow it, that’s great. Until they do, then it remains in violation of the Rule of Professional Conduct 5.5, and you can’t do it.

    Their pecuniary interest doesn’t make them any more reasonable than this young, solo lawyer’s persistent flouting of the rules for her own financial benefit. If all lawyers thought it was fine to lie and cheat to make money, would that make it right? Come on, Noah. Financial self-interest does not make ethics disappear.

  17. Noah

    Now we are getting somewhere – you talk of “this young, solo lawyer’s persistent flouting of the rules for her own financial benefit”.

    Are you sure that’s the case? Are you sure that she is not following the rules explained by Steph Kimbro in her book? I think she CAN advise Florida and California residents on issues of NY law, and I am not sure from the article that she advised them on issues related to a jurisdiction where she is not admitted. If you have reason to believe that she is violating the rules of your state, don’t you have a duty to report (as a non-NY lawyer, I don’t know)?

    In the old days, if I remember correctly, this lawyer did not state where she was admitted on her website – I think that is a real problem, especially when promoting a “national” virtual practice. It seems to have been fixed (but not the date admitted problem, an issue she shares with Steph Kimbro).

    One issue I see with her website that a bar may have a problem with for UPL (I do not know South Dakota’s rules), is that she lists her South Dakota address as a practice mailing address, without being barred there. Is that UPL? I could not have done the same in MD before being admitted there (even if I claimed to only practice issues of federal, DC, and FL law).

    With regard to large firms, I think there’s often a reliance on the “occasional practice” exception, or its analogue in foreign countries. Solos and small firms should be allowed the same leeway. None should advise on issues of state law from a state they are not admitted, but I do know that non-Delaware lawyers talk about Delaware corporate law all the time.

    And I hope that we can all agree that it’s not fine to lie and cheat to make money, even if you really need it. 😀

  18. SHG

    Am I sure of what? That the post says what it says? Yes, of that I’m sure. That it’s true? No, I am not sure at all. In fact, I have very substantial doubts about anything said being true.  I have very substantial doubts that she wouldn’t say anything to appear more prominent.  Absent any first hand knowledge that there is, in fact, wrongdoing, it would be inappropriate to do anything further.

    And so you know, I think the “occasional practice rule” is total sell-out to biglaw bunk, and have said so. But two wrongs don’t make a right.

  19. Super Duper

    Noah – you are missing the point. The point is we’re here to bash Rachel Rodgers again and again because we hate marketers grrrrrrrrrr. Get with the program. If you are a Fishtown lawyer who with 5 years of practice, advertises everything from Employment Law to Estates & Administration – you are presumed competent in every area because you have a real physical office with nice furniture.

  20. SHG

    Dear Baby Scamblogger,

    First, if you want to comment, you have to use a real email address like the grown ups. I know, you want to be really anonymous, but those are the rules here. I’ll let you slide this one time, but that’s it for you.

    And no, we don’t want to bash Rachel.  I understand that’s how it looks to you, but that’s only because you’re perceptions are superficial. We’re not children, so projecting childish motives won’t help you to understand.  Frankly, it makes you look rather thick and dull-witted. I hope I didn’t hurt your self-esteem by saying that. If so, my apologies.

    Rather, we want to prevent others from engaging in the sort of conduct that she goes out of her way to promote.  We want to stop baby lawyers, much like you but unafraid to put their names to their words, who are hungry and confused, make themselves the targets of snake oil selling marketers and lawyers who urge others to engage in unethical conduct for a quick buck.

    If you’re confused about what the point is, I’m happy to explain it to you. If the words are too big, I’ll use smaller words. You won’t be a baby lawyer forever, and one day you will appreciate grey-beards like me who stopped you from wallowing in the gutter when you were desperate, entitled and foolish.

    Of course you won’t appreciate it now, but someday you will understand.

    Your friend,
    Scott

  21. Baby Scamblogger

    My my. The ad hominems fly fast and furious. “”Baby scamblogger,” “dull witted” “thick” “childish”.

    I have hit a nerve.

    You don’t promote any kind of conduct. What you do is choose who you want to bash. Take the aforementioned Fishtown Lawyers. Do you really think two lawyers 5 years out of can practice in general civil, criminal defense, estates, bittorent litigation (?), landlord tenant, zoning all competently? This doesn’t even pass the smell test.

    But I guess they can tell you a prothonotary is a clerk of court and that having apparently sampled the practice of law in all 50 states, Pennsylvania is definitely the strangest because lawyers can issue praecipes that produce all sorts of strange results like firebreathing dragons who slay legal adversaries.

  22. SHG

    Ah, I was certain you would be back. Thank you for not disappointing. And I’m very impressed that you created a special Yahoo email address just for me, though there are two important things to remember. First, Yahoo is spelled with two “O’s,” not one. Second, spam filters don’t favor Yahoo email addresses. But given the effort you’ve put in, it would be thoughtless of me to let your comment die in the spam folder.

    For regular readers, this is old news, but since you’re new here, it’s important that you use phrases correctly. An “ad hominem” doesn’t mean what you think it does. If I say you’re stupid, and therefore your argument is stupid, that would be an ad hominem. But I say you’re argument is stupid, that is not. As for calling you “Baby Scamblogger,” that’s merely factual.

    As for hitting a nerve, not in the sense that digital natives use the phrase. You did, however, hit a nerve in the sense that I am deeply concerned for law students and young lawyers who offer illogical or irrational arguments, the sort that prevails and amuses your contemporaries on the playground and at scamblogs. If you want to be persuasive with grownups, it’s important to learn how to distinguish substantial arguments from the merely glib and snarky. I have nothing against snark, but there has to be some depth behind it.  This is something you should work on. Readers here tend to be more experienced, and disinclined to be moved by the insipid arguments and brilliant use of memes that are beloved by younger folk.

    Finally, there is nothing in this post about Fishtown Lawyers, and so whatever issue you have with them isn’t my concern.  While Jordan commented above, your comments aren’t directed to him. If that was your intention, then you ought to use the “reply to this” button so that he will know if he happens to come by again.  If this is a more general issue, you ought to start a blog (or maybe you have one?) where you can address your feelings on the subject. 

    To the extent your effort is meant to juxtapose Fishtown Lawyers with Rachel, you’ve engaged in another poorly conceived argument. Try to follow this (and I trust you will enjoy my self-effacing example): That I am uglier than you does not mean you are not ugly. I made this point to Noah above, which he had the maturity to acknowledge.  Whether you will be able and willing to understand why your arguments aren’t impressive, I don’t know.

    Looking forward to your next effort at demonstrating your mastery of the interwebz. In the meantime, I offer you this to make you feel more at home:

  23. Jordan Rushie

    Oh cool, an anonymous comment questioning my practice and competence.

    I’ll tell you a secret, but don’t tell anyone…

    Our big offices and nice furniture magically appeared after we ran an SEO campaign to get in a bunch of new clients and fucked up their cases. I woke up one morning and was like “Whoa!”

    We didn’t start sharing one tiny office furnished with Ikea furniture. And we didn’t expand because clients were happy with our work and continued to bring us business, and refer new clients to us.

    Nope. It didn’t happen like that.

    We just fucked up a bunch of cases and our practice grew as a result. Cool story, right?

    Now tell me about your practice.

  24. SHG

    First, is that sort of language necessary? I realize that it’s commonplace at scamblogs, but there really isn’t any need for cursing here.

    Second, the tit for tat snarkiness is exactly the sort of thing I suggest is unpersuasive to Baby Scamblogger. Do you really want to turn SJ into a playground for children?

    Third, did you consider the use of a cat meme or is there no meme for hard work?

  25. David M. Nieporent

    As anybody who watched the Electric Company knows, Fargo is in North Dakota, not South Dakota, making your entire analysis wrong.

  26. SHG

    I wanted to slip the movie in there and figured no one would pick it up. Thanks for blowing my cover.

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