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Re: Advisory
Opinion 2004-03
Professional Ethics Committee
Arkansas Bar Association
Date: December
1, 2004
Subject: Non-Arkansas Lawyers in Arkansas Law Firms
This committee
has been presented with several questions concerning
a lawyer, not admitted to practice in Arkansas, who
is a member of an Arkansas-based law firm and works
in the Arkansas office on a regular basis. This situation
can arise in several ways: The lawyer may be making
a lateral move from another state to Arkansas and
waiting to take the Arkansas Bar examination or to
be admitted on motion; the lawyer may join an Arkansas
firm prior to retirement; or the lawyer may be living
in Arkansas for a limited period of time in connection
with the education or occupation of a spouse.
1) Use of the Lawyer's
Name: Arkansas Rule of Professional Conduct 7.1
requires that public statements concerning a lawyer
not be false or misleading. The public examines the
letterhead or other publications of an Arkansas law
firm and believes, with ample justification, that
each lawyer named is admitted to practice in Arkansas.
Accordingly, the letterhead of the firm may include
the name of a non-Arkansas lawyer only with appropriate
disclaimer. Typically such disclaimers are indicated
with the use of an asterik, for example, "XYZ*,
admitted only in Louisiana". We believe that
the use of the disclaimer is necessary. In the absence
of the disclaimer, whether the communication is in
a telephone book, newspaper advertisement, or elsewhere,
the name of the non-Arkansas attorney should not be
used.
2) Status
of the Attorney: The status of the attorney within
the law firm is a matter of contract and partnership
law for the firm. The relationship between an attorney
and a law firm is not governed by the Arkansas Rules
of Professional Conduct. The non-Arkansas attorney
may be a partner, an associate, "of counsel",
or perhaps another status. Rule 5.4(d) permits only
lawyers to be members of a firm, but does not require
that they be admitted to practice in this state. Rule
7.5(b) permits the same firm name to be used across
state lines. American Bar Association Formal Opinion
90-357 sets forth the traditional parameters for the
"of counsel" status.
3) Billing:
We find no restrictions in the Arkansas Rules of Professional
Conduct for fees charged by lawyers who are not admitted
to practice in Arkansas. Fees may be set in the same
way as for Arkansas attorneys. See Rule 1.5(a). We
believe that fairness to the client requires disclosure
that the attorney is not licensed in Arkansas, particularly
if the attorney interacts with Arkansas clients.
4) The
activities of the non-Arkansas attorney: Even
though a member of the firm, the non-Arkansas attorney
is not admitted to practice, and cannot practice law
in Arkansas. See Rule 5.5(a). Likewise, the firm cannot
assist the attorney in the practice of law in this
state. See Rule 5.5(b). Because the attorney is a
resident of Arkansas, he cannot seek admission pro
hac vice. See Rule XIV of the Rules Governing Admission
to Practice. See Willett v. State, 334 Ark.
40, 970 S.W.2d 804 (1998) (Arkansas law professor,
admitted only in Texas, not permitted to argue death
penalty case in Supreme Court).
The definition
of the practice of law is elusive. Smith v. National
Cashflow Systems, Inc., 309 Ark. 101, 827 S.W.2d
146 (1992). Providing legal services in courts and
giving legal advice constitutes the practice of law.
Undem v. State Board of Bar Examiners, 266
Ark. 683, 587 S.W.2d 563 (1979). A lawyer who is not
admitted to practice in Arkansas cannot appear in
court and cannot file pleadings. On the other hand,
it has been traditionally permitted for an attorney,
though not admitted in a jurisdiction, to negotiate
matters, to draft documents, to engage in legal research,
to interview clients or witnesses, or to make appearances
before administrative or legislative bodies.
(5) Length
of Status: However, we are troubled by the open
ended nature of this relationship. For example, suppose
an Arkansas law firm says to a lawyer joining the
firm in a lateral move from Texas: "There is
no reason to be admitted in Arkansas. You will only
do transactional work." Even with proper disclosure,
should that status be allowed to continue indefinitely?
The Arkansas
Supreme Court has traditionally taken a strict approach
to the unauthorized practice of law, even by lawyers.
However, offsetting that approach, it has made it
easier for lawyers to be admitted in Arkansas by re-instating
admission on motion by reciprocity, effective October
1, 2004.
We note
that the language now pending before the Arkansas
Supreme Court would clarify the prohibition on the
unauthorized practice of law by an attorney. Proposed
Rule 5.5(b)(1) states: "A lawyer who is not admitted
to practice in this jurisdiction shall not. . . establish
an office or other systematic and continuous presence
in this jurisdiction for the practice of law."
Proposed Rule 5.5(c) would permit legal services in
Arkansas on a temporary basis. The accompanying proposed
comment states: "There is no single test to determine
whether a lawyer's services are provided on a "temporary
basis" in this jurisdiction, and may therefore
be permissible under paragraph (c). Services may be
"temporary" even though the lawyer provides
services in this jurisdiction on a recurring basis,
or for an extended period of time, as when the lawyer
is representing a client in a single lengthy negotiation
or litigation."
We do not
believe that the rule against unauthorized practice
can be evaded by merely joining a law firm. Even aside
from the question of the action of the lawyer, the
law firm would be assisting in the unauthorized practice
of law.
Accordingly,
we conclude that the law firm may associate the non-Arkansas
attorney for a reasonable period of time, during which
time the non-Arkansas attorney should make the transition
to become a member of the Arkansas Bar.
NOTICE
"This
is an opinion only of the Arkansas Bar Association
which is a voluntary association of attorneys licensed
to practice in the State of Arkansas, and reliance
thereon is voluntary and relieves any Association
member from liability for the content hereof. This
opinion is intended to be the Association's best interpretation
of the Model Rules of Professional Conduct as promulgated
by the Supreme Court of Arkansas as that code applies
to the written facts presented to the Committee."
ARKANSAS
BAR ASSOCIATION
By: ____________________________________
Howard W. Brill
Reporter
Professional Ethics Committee
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