1. Resolving Multi-jurisdictional Practice of Law Issues in Estate Planning
February 10, 2012
By: Peter J. Walsh, Esq.
O’Neil, Cannon, Hollman, DeJong & Laing S.C.
111 East Wisconsin Avenue, Suite 1400
Milwaukee, WI 53202

2. Discussion Topics Issues with UPL in estate planning
General prohibitions on UPL
Wisconsin’s new rule on UPL and multi-jurisdictional practice
Permissible practices in Wisconsin
Penalties for UPL

3. UPL Issues in Estate Planning
Mobility of clients
Long term nature of attorney/client relationship - when does the relationship need to end to avoid UPL?
Bright lines and gray areas

4. General Prohibitions on UPL
ABA Model Rule of Professional Conduct 5.5: UPL & Multijurisdictional Practice of Law (“MR”)
Response to Birbrower (NY-Attorneys, CA-client, CA-arbitration, denial of fees because of UPL).
Protecting public against rendition of legal services by unqualified persons.
Is there a harm needing to be addressed?

5. General Prohibitions on UPL
Broad prohibition of MR
A lawyer may not practice law in a state in which he is not licensed
Broad exceptions to the MR prohibition

6. General Prohibitions on UPL
Four Important Considerations:
Does the conduct constitute the “practice of law”?
In which jurisdiction is the law being practiced?
Does the practice of law violate regulations of the applicable jurisdiction?
Would the practice be permitted in Wisconsin for lawyers not admitted in Wisconsin?

7. “Practice of Law” Varies by jurisdiction.
Finding of UPL under a state’s ethical rules is contingent on the state’s definition of the practice of law.
WI Supreme Court Rule 23:01 provides guidance:
“[T]he application of legal principles and judgment [regarding] the circumstances of another Where there is a client relationship of trust and which require the knowledge, judgment, and skill of a person trained as a lawyer.”

8. Practice of Law Examples of Practice of Law in Wisconsin:
Giving legal advice for a fee.
Drafting or selecting legal documents.
Representing a person or entity in court or other proceeding, or in an administrative proceeding.
Negotiating legal rights or responsibilities on another person’s behalf.

9. Practice of Law
Activities that do not require a license to practice law in Wisconsin, include:
Selling legal forms in any format,
Activities preempted by federal law, and
Selecting or completing legal documents, where the document may contain various blanks to be filled in and the selection or completion of the document requires only common knowledge regarding the required information and legal consequences

10. Practice of Law Case law from other jurisdictions provides guidance
IL Supreme Court: the giving of advice that requires the use of any degree of legal knowledge or skill.
AZ Supreme Court: providing legal advice or services including preparing documents, expressing legal opinions, representation in a judicial or similar proceeding, preparing documents for filing with a court or other agency, and negotiating legal rights or responsibilities for another.

11. Practice of Law
Case law from other jurisdictions provides guidance (cont.)
FL Supreme Court: giving advice and performing services for compensation, which affect a person’s legal rights and requires that the person giving such advise possess legal skill and knowledge of the law greater than that possessed by the average citizen.

12. “Practice of Law” in Estate Planning
No cases in Wisconsin/cases from other states on the issue indicate the following may be the practice of law.
Information gathering for estate planning analysis.
Advice regarding testamentary transfers.
Preparing estate planning documents.
Preparing Deeds and Sales Agreements.
Conducting legal seminars.
Probate administration.
Assisting with IRS Audits and Preparing tax returns – Not UPL.
Federal practice – Not UPL.

13. The Jurisdiction
Modern technology makes identifying the jurisdiction more complicated.
Two types of presence, physical and virtual, need to be considered.
Physical presence:
An attorney practices in the jurisdiction in which her office is located.
In re Roel, Mexican attorney advising NY residents as to Mexican law practiced in NY because office located in NY.

14. The Jurisdiction Physical presence (cont.)
In re Discipline of Lerner, AZ-attorney practiced law in NV by meeting with NV-client in NV-office.
Birbrower
NY-attorneys, CA-clients, CA-arbitration over CA-contract.
Meetings and negotiating sessions in CA
Practice in CA constituting UPL.
Spivak v. Sachs
CA-attorney, NY-client, CN-family law matter.
Attorney spent 14 days doing legal work in NY.
Practice in NY constituted UPL.

15. The Jurisdiction Virtual Presence Telephone, facsimile, emailing
MR - presence can be systematic and continuous even with no physical presence
FL Rule – presence may be regular even if lawyer is not physically present in State

16. The Jurisdiction Virtual Presence (cont.) Situs of the client is key
If client is resident of state of attorney’s license, then broad representation permissible
Attorney can represent in-state client with matters of home state law as well as matters of other state law
Restatement indicates that attorney can provide broad representation to residents of attorney’s state

17. The Jurisdiction Virtual Presence (cont.) Estate of Condon
CO-Attorneys, CO-client, CA-probate proceeding
CO-Attorneys performed work in CO
CA-Co-Counsel handled CA-court filings
Co-Attorneys did not practice in CA, No UPL
Client’s residence determinative factor

18. The Jurisdiction Virtual Presence (cont.)
If client is not a resident of state of attorney’s license then representation may be limited
El Gemayel
Lebanese-Attorney representation of NY client on issue of Lebanese law permissible
Attorney’s visits with client in NY did not constitute practice in NY so no UPL

19. Permissible Practice
Look to the laws of the applicable jurisdiction to determine if practice is permissible.
Attorneys are subject to the discipline of any state in which they practice regardless of where attorney is licensed.
Reciprocal discipline is also a possibility.

20. Permissible Practice
Look to the MR for guidance (if the state has adopted a similar rule).
Most states have adopted some variation of the MR.
For example, Wisconsin and Florida have adopted similar versions of the MR.
Only 2 states, Kansas and New York, have declined to adopt the MR.

21. Permissible Practice in WI
Wisconsin version of the MR
Includes reciprocal provision not included in the MR or Florida Rule
Provides that if it is okay for non-Wis. Attorney to do in Wis., then okay for Wis. Attorney to do in another state
Unclear whether this would apply in another state where version does not have a reciprocal provision

22. Permissible in Wisconsin
Four Exceptions for practice on an “Occasional Basis”
“Temporary basis” in MR
Recognition that temporary practice in jurisdiction may not cause an unreasonable risk to clients, public or courts

23. What constitutes “Occasional Basis”?
No single test.
Services may be temporary even if on a recurring basis.
Services may be more than temporary even if no physical presence in State.

24. What constitutes “Occasional Basis”? (cont.)
Examples:
Gould, NY-licensed attorney lived in FL for over 29 years and established an office there – NOT “temporary basis”.
District of Columbia UPL Op, Contract lawyer performing short-term legal work for lawyers and law firms in the District of Columbia was practicing on a regular and not temporary basis.

25. What constitutes “Occasional Basis”?
Examples (cont.)
In re Estate of Cooper, TN-licensed lawyer filed notice in a probate proceeding in Nebraska for TN client considered to be practice on a “temporary basis” because it arose out of the lawyer’s home state practice and was an isolated filing.

26. Four “Occasional Basis” Exceptions
1.& 2. Participation in litigation, arbitration, mediation, and dispute resolution.
- Meeting with clients,
- Interviewing witnesses, and
- Reviewing documents.
3. Co-counsel arrangements.
4. Representation arising out of or related to practice in a jurisdiction in which the lawyer is admitted to practice.
*This list of exceptions is NOT exhaustive!

27. Co-Counsel Exception
“Association with local counsel may permit activities not otherwise permissible.”
Licensed counsel must actively participate and share responsibility
Local counsel cannot be a mere conduit to instate practice
Arrangement can only be temporary

28. Co-Counsel Exception
The client should be informed that Attorney not admitted to State
Local Counsel may need to implement actions
Local Counsel may risk assisting in UPL if he fails to materially participate

29. Co-Counsel Exception Examples:
Florida Bar v. Savitt, Non-Florida lawyer’s activities must merely constitute assistance of Florida lawyer
Florida Bar v. Beach,
local counsel assisted in UPL by acting as co-counsel
No supervision of out-of-state attorney nor interaction with client
In re Knight, Wis-Attorney suspended for allowing out-of-state attorney to use her name and trust account

30. Co-Counsel Exception Examples (cont.) Fought & Co. - No UPL
OR-Attorney, OR-Client, HI-Litigation, HI-co-counsel
OR-Attorney did not sign papers filed in HI
HI-co-counsel made all HI-court appearance
Situs of client important to determination

31. Co-Counsel Exception Examples (cont.) In re Waring’s Estate – No UPL
NY-Attorney, NJ-Client, NJ-Estate Administration, NJ-co-counsel
Permissible because NJ-Co-Counsel’s active participation and transitory nature of matter
In re Jackman, Mass-Attorney engaged in UPL by working in NJ-firm for seven years

32. Exception for Representations Arising out of Home-State
Exception for temporary representation that arises out of or is reasonably related to state of license
Covers matters that are ancillary to home state
Provides some latitude for transactional attorneys by allowing
Clients to retain same lawyer for multiple transactions
Cross-border services by recognized experts

33. Exception for Representations Arising out of Home-State (cont.)
May include much of estate planning
Some states limit exception to existing clients
Factors for determining whether exception applies include:
Past representation of client by attorney
Applicable issue has significant connection to home state
Client’s legal issues involve multiple states
Attorney has recognized expertise in area of law
Activities of all lawyers involved in representation are relevant

34. Exception for Representations Arising out of Home-State (cont.)
Examples:
Lindsey, NY-Estate Planning Attorney could draft and oversee an execution of Will by Mass-client because isolated incident
Restatement Example: IL-Estate Planning Attorney could prepare estate planning documents for FL residents – very lenient standard
Florida Bar, IL-Attorney committed UPL by preparing Will and antenuptial agreement for FL-clients

35. What May be Permitted in Wisconsin?
Preparing deeds for WI client to real property in another state.
Advising trustee of a WI trust as to real property located in another state; or advising trustee of a trust situs in another state under WI laws.
Preparing state income and estate tax returns for WI decedent or trust for interests with situs in another state; or preparing returns for non-WI decedent or trust with respect to property situs in WI.

36. What May be Permitted in Wisconsin? (cont.)
Preparing federal income tax returns and/or dealing with Federal income tax issues for any individual, trust, or business entity.
Representing non-WI clients with probate proceedings in WI court (i.e. probate, guardianship, and trust administration).

37. What May NOT be Permitted in Wisconsin
Representing a non-WI resident in estate planning matters without material participation of an attorney licensed in client’s home state.
Administering an estate or trust of non-WI resident concerning property not situs in WI.
Representing non-WI resident in probate proceedings in another state (i.e. probate, guardianship, and trust administration).

38. Potential Penalties for UPL
Criminal
Ethical Disciplinary Action
Denial of Pro Hac Vice
Malpractice Liability
Denial of Fees

39. Potential Penalties for UPL (cont.)
Criminal
UPL is Class C Misdemeanor in Wisconsin.
UPL is Felony in Third Degree in Florida.
In re Schrader, GA-Attorney charged with misdemeanor for filing a probate petition in NY without pro hac vice status

40. Potential Penalties for UPL (cont.)
Ethical Disciplinary Action
Civil contempt
Injunctive relief
Suspension
Disbarment
Reciprocal discipline

41. Potential Penalties for UPL
Ethical Disciplinary Action (cont.)
Reciprocal discipline
Attorney subject to discipline in both state of license and state of UPL
In re Kingsley, Attorney licensed in PN disbarred in DE for UPL in DE
In re Bailey, Attorney disbarred in MA as reciprocal discipline for disbarment in FL
In re Disciplinary Proceeding of Ness, WI-Attorney suspended in WI for UPL in MN
In re Disciplinary Proceeding of Crandell, Discipline in WI for misconduct elsewhere is permissible

42. Potential Penalties for UPL
Denial of Pro Hac Vice Motion
Preston, Attorney denied pro hac vice motion because filed 18 months after complaint
Office of Disc., OH-court denied NJ-Attorney pro hac vice motion even though timely filed because attorney appeared in court before motion granted

43. Potential Penalties for UPL
Malpractice Liability
Significant differences in substantive law and procedures between states
Court filing by unlicensed Attorney may be a “nullity”
Preston, AR-complaint signed by unlicensed attorney dismissed
Fruin, IL-complaint filed by WI-attorney dismissed because no prior permission granted to attorney

44. Potential Penalties for UPL
Court filing by unlicensed Attorney may be a “nullity” (cont.)
McEvers, IL-Court declined to follow harsh result of Fruin
Wellmore Coal, VA-Appeal dismissed because notice signed by unlicensed attorney

45. Potential Penalties for UPL
Court filing by unlicensed Attorney may be a “nullity” (cont.)
In Re Ambac Assurance Corp., WI-Court found that filing an appeal without pro hac vice status is a fundamental defect which cannot be corrected
If complaint can be disregarded what about a Trust or a Will drafted through UPL

46. Potential Penalties for UPL
Denial of Fees (cont.)
Successful attorneys can still be denied fees for UPL
Chandris, FL-court denied contingency fee because of UPL
Bolte, WI-attorney denied large contingency fee because of UPL in Colorado Goldberg, FL-Court rules that victims may bring private actions to recover attorney’s fees paid incident to UPL
Goldberg, FL-court rules that victim may bring private actions to recover attorney’s fees paid incident to UPA
ALR – Attorney may be ordered to return fees received for drafting a Will when work constitutes UPL

47. Issues in Multi-Jurisdictional Practice
QUESTIONS
By: Peter J. Walsh, Esq.
O’Neil, Cannon, Hollman, DeJong & Laing S.C.