In recent days, attorneys licensed in jurisdictions outside of California have received daunting e-mails from the State Bar of California. With a tag line of “Introduction to Investigator” otherwise qualified lawyers are being told their application for determination of moral character is being further considered. Under section 6060 of the Business and Professions code, in order to be certified for admission and receive a license to practice law in California, an applicant must be of good moral character. That does not only mean that you have to be an ethical lawyer – it also means you have not stepped over the line into the unauthorized practice of law. The vast majority of licensed attorneys have no intention of ever engaging in unauthorized practice – the problem stems from not realizing boundaries were crossed.
In a nutshell, one cannot practice law in California unless they have a license to do so. The grey area always rests on the inquiry of what the practice of law actually entails. Under the State Bar Act, it is unlawful to practice law in this state unless one is a member of the California State Bar or is otherwise authorized by statute or court rule to engage in the practice of law. Bus. & Prof. Code, §§ 6125, 6126(a). The prohibition against the practice of law without membership in the California State Bar or authorization by statute applies equally to lay persons and to out-of-state attorneys. Birbrower, Montalbano, Cordon & Frank v. Superior Court (1998) 17 Cal.4th 119, 130-132. The California Supreme Court defined UPL: The practice of law ‘in California’ requires sufficient contact with the California client to render the nature of the legal service a clear legal representation. The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state or created a continuing relationship with the California client that included legal duties and obligations.
The Court continued by stating that definition does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer or other modern technological means. We must decide each case on its individual facts. Id. at 129.
Finally, lawyers are now faced with the everchanging landscape of the Covid-19 pandemic. For well over a year lawyers have been working from home and not from their respective offices. Many east coast lawyers travelled west to set up shop on the beaches of Malibu. (true story). Jurisdictions with residency requirements pondered whether a remote practice would necessity amending the current rules. in December 2020, the ABA issued an ethics opinion on Lawyers Working Remotely. ABA Formal Op. 495 (Dec. 16, 2020). ABA MR 5.5 provides that a lawyer who is not admitted to practice in a particular jurisdiction shall not establish an office or “other systematic and continuous presence” in that jurisdiction for the practice of law, except as permitted by the Model Rules, or “other law,” to include federal law and administrative law. CRPC (California Rule of Professional Conduct) 5.5 is similar. CRPC, rule 5.5 (prohibiting lawyer not admitted to practice in California from holding out to the public or otherwise representing that the lawyer is admitted to practice law in California.
Is sitting on the beach a “continuous presence”. What if the pandemic necessitated a move? Then what? In addition, the lawyer must not “hold out” to the public or represent that the lawyer is admitted to practice law in a jurisdiction where the lawyer may happen to be physically located, but not admitted to practice. CRPC 5.5 provides similar language. In addition, under California law, any person holding out as entitled to practice law or otherwise practicing law, who is not an active licensee of the State Bar or otherwise authorized to practice law in California is guilty of a misdemeanor.
The rules are confusing to say the least, and in order to avoid the mere appearance of impropriety more and more out of state attorneys are opting to take the California Bar Exam and are seeking admission in California. That seems to be the better route rather than facing the “introduction to an investigator” e-mail.