Attorneys Moving to California – In the absence of reciprocal admission, what is a busy practicing lawyer to do?
Ever watch the hit TV show ‘Suits’? You know, the one with the attractive lawyers, exciting cases, and an associate practicing law without a license. Plausible? Only in Hollywood. As this presents a clear case of engaging in the unauthorized practice of law. What about the scenario where a New York Lawyer advises a California client about a real estate deal in Los Angeles? As a member in good standing of the New York State bar, why shouldn’t a seasoned attorney be permitted to advise on the West Coast without the fear of professional discipline?
The whole area of unauthorized practice of law (UPL) is murky, but nowhere as much as when practicing a matter takes you across jurisdictional lines – federal and state. We are all pretty familiar with the Birbrower decision that put a lot of lawyers on edge.
California law provides “No person shall practice law in California unless the person is an active member of the State Bar.” The Court in the Birbrower case found that activities while physically present in California were the practice of law. The hard question in applying the UPL law is what does “in California” mean? The Court reasoned:
- There must be “sufficient contact with the California client to render the nature of the legal services a clear legal representation.”
- Part of the analysis is quantitative: “Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law ‘in California.'”
- The test is whether (a) there were sufficient activities in the state, or (b) the circumstances created a continuing relationship with a California client that includes legal duties and obligations.
- The test does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state. That is one factor but not exclusive. Virtual presence in California also may lead to a UPL violation. The law may be violated “by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technology.”
- Virtual presence in California is not an automatic UPL violation. Each case turns on its own facts.
Well, if that is all the case, then what should a lawyer do? The obvious and yes painful answer to this question is simply to gain admission to the state bar in the state in which you intend to practice. This requires an attorney to prepare and sit for a state bar exam. States like California allow experienced attorneys to sit for an abbreviated form of the bar examination, while others states require an attorney to take the entire bar examination including the MBE. As difficult as these exams are, better to be safe than sorry.
Executive Bar Review offers unique assistance to busy lawyers preparing for the bar examination in “difficult” states such as California and New York. Our custom tailored bar review program is designed and crafted around each practicing attorney’s busy schedule to ensure maximum efficiency without the need to take time away from work…and billable hours. In the long run, having a license in multiple jurisdictions ensures compliance with ethical standards and, well, adds a few more lines to the “admitted to” section of a resume.
Courtesy of Executive Bar Review