The rules prohibiting the unauthorized practice of law don’t merely preclude doing legal work or giving legal advice without an active law license.
They also preclude practicing law in a jurisdiction where you’re not licensed, as well as even creating the impression that you’re licensed in that jurisdiction.
These distinctions can be tricky, especially if lawyers work remotely, cross state lines, or reside part-time or full-time in another jurisdiction.
The following question from an Alta Pro insured is instructive.
Dear Risk Pro: My husband and I just purchased a house in Florida. I am licensed to practice in Ohio, but not Florida. I have volunteered to be on a bylaws committee of our new HOA in Florida. I’m concerned that a Florida attorney doesn’t “pass” on amendments created by the committee for the HOA Board. My potential concerns are unauthorized practice and malpractice liability. Any thoughts? Sunny in South Florida
Dear Sunny: Thank you for reaching out to us with your question. You earn a gold star for proceeding cautiously. I think you’ve correctly identified the two key issues: unauthorized practice and malpractice liability. Following are some risk management considerations.
1. Read Rule of Professional Conduct 5.5 (Unauthorized Practice of Law / Multijurisdictional Practice).
Here is a link to the ABA Model Rule.
Rule 5.5 prohibits: (1) practicing law in a state where you aren’t licensed; (2) establishing an office in an unlicensed state for practicing law; (3) establishing a “systematic and continuous presence” in said state for the practice of law; (4) holding out to the public that you’re licensed; (5) “otherwise representing” to the public that you’re licensed.
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2. Read the corresponding Rules of Professional Conduct in Florida and Ohio on Unauthorized Practice
Here is a link to Ohio Rule 5.5 (which appears to be substantially similar if not identical to the ABA model rule).
The Ohio Board of Professional Conduct gives proactive ethics advice. Here is a link. From the Ohio Board website: “The Ohio Board of Professional Conduct may issue nonbinding advisory opinions in response to prospective or hypothetical questions from members of the bar and judiciary.” It appears you can make an inquiry in writing or by telephone.
3. Read and follow ABA Formal Opinion 495
Here is a link to ABA Formal Opinion 495. This December 2020 opinion addresses ethical issues of practicing remotely in a jurisdiction where you’re not licensed. It also offers good guidance on Unauthorized Practice and multi-jurisdictional issues.
4. Research the ethics opinions/rulings in Ohio and Florida to see if either state has issued an opinion similar to ABA 495.
5. Malpractice liability
That’s a question for your professional liability carrier/underwriter/agent/broker. Read your policy carefully. See what it covers and what it excludes. What are your requirements for notifying your carrier of a change of address, or a change in the nature and location of your law practice? Schedule a telephone conference to discuss these and related issues with your underwriter/agent/.
6. Err on the side of caution
Trust your instincts. If you feel funny in your gut about doing something, don’t do it. Sometimes simply having to ask a question gives you the answer. That’s not just legal advice; it’s good practical life advice.
7. A Risk Management Post-script (from Alta Pro)
In deciding whether to join the board, make sure that the HOA has Directors & Officers liability insurance that protects board members. The board should provide you with written documentation/acknowledgment that you are joining solely as an interested condo owner and will not be acting as a lawyer or providing legal advice to the board. You should also make sure that you preface your remarks with this disclaimer at all board meetings and that the minutes reflect this.
Bottom line: You’re right to be concerned. We’ve seen hair-raising claims when HOA/condo board members turn on each other, or when outside parties get involved. They are likely to go after any and all possible targets, and being a lawyer almost automatically makes you a prime one. Question: Why doesn’t your board use outside counsel to “pass” on bylaw amendments. Have you asked?
Thanks again for your question – and for being a valued member of Alta Pro Lawyers RPG.
Jay Reeves aka The Risk Pro
If you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan, you can stay on top of ethics and risk management news by being a member of Alta Pro Lawyers RPG. You’ll get access to free webinars, the Pro Practice Playbook, Reminger ProLink, Ask the Risk Pro and more. Here’s how to join.