Celebrating 10 years! 2007-2017

Unauthorized Practice of Law Question (in another state)

I helped an immediate relative with a housing issue (for fre loser1206/21/18
Check your state's criminal statute outlining the elements o jeffm06/21/18
My e-mails said Esq., licensed in home state only so any law loser1206/21/18
If you read MR5.5 I think you'll see that UPL isn't really s onehell06/21/18
No. Is this relative going to report you to the bar? You're fettywap06/21/18
Was this even a legal representation? Non-lawyers negotia patenttrollnj06/21/18
Yeah, merely negotiating a transaction is not the practice o flharfh06/22/18
Theoretically, yes it is. My state specifically includes "Pr onehell06/22/18
You're fine OP. You sent emails from your home state (where isthisit06/22/18
They did threaten if I don't get an unrealistic expectation loser1206/22/18
Under a threat like that, I'm sure you've done the research. jeffm06/22/18
I'm calling the bar to see whether I can negotiate on her be loser1206/22/18
OP, who threatened you that they will report you? Your own c guyingorillasuit06/22/18
Yes. I said I may have to remove myself from it because of t loser1206/22/18
You’re fine. Chill out. esquirewalletsmatter06/22/18
Be glad you learned your lesson on something chumpy like thi jeffm06/22/18
Literally, the only people who have ever been dishonest with loser1206/22/18
This thread has been a little hard to follow. So your si superttthero06/22/18
I don't think my sister would actually report me, especially loser1206/22/18
Don't be a chump. It sounds like you want to be a chump superttthero06/22/18
I'll be honest with you: I would not give in under these fac guyingorillasuit06/22/18
I know 5.5. The issue is that the forum state is NJ, and the loser1206/22/18
Again, check the situs state's criminal statute to see if it jeffm06/22/18
I think OP was asking about the bar, not about criminal pros onehell06/22/18
You already covered the rule, above. Systematic and continu jeffm06/22/18
Yeah, I care about the bar. Nobody is arresting me here. loser1206/22/18
I recused myself right away once I knew without hurting thei loser1206/22/18
You'll be fine. Your relatives sound like losers. Even if isthisit06/22/18
I have clients who are out of state. I did not solicit them dingbat06/22/18
I’m overly cautious, because I was admitted with a littany loser1206/22/18

loser12 (Jun 21, 2018 - 5:59 pm)

I helped an immediate relative with a housing issue (for free obviously) just negotiating a deal. I only realized after the fact they are in another state (they always grew up in my state). I'm not licensed there, and recused myself right away. But am I potentially in trouble here? How serious are the possible ramifications?

Could this affect c&f in my home state/my career?

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jeffm (Jun 21, 2018 - 6:04 pm)

Check your state's criminal statute outlining the elements of barratry. I anticipate that one of the elements is that the person engaged in the activity (rendering legal services) with an intent to obtain compensation.

Aside from that, yours is a case of "If a tree falls in a forest and nobody is there to hear it..." I wouldn't be concerned.

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loser12 (Jun 21, 2018 - 6:13 pm)

My e-mails said Esq., licensed in home state only so any lawyers that saw my e-mails would know I wasn't licensed there. I'm used to lawyers at work disclosing where they're licensed on their signatures so just wanted to make it clear. For what it's worth, one of the tenants is a resident of my state and simply stays there sometimes but the property is located in the foreign state.

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onehell (Jun 21, 2018 - 6:56 pm)

If you read MR5.5 I think you'll see that UPL isn't really so much about the substantive law that applies to a given situation. It's not about WHAT law you're practicing, but WHERE. Hence, for example, the emphasis on whether one has established a "systemic and continuous presence" in the state in which they're unlicensed. 5.5 also requires you to get local counsel to work temporarily in a foreign state, but even then, such local counsel is only required if you're going to practice law IN the foreign state, not when you're going to work on an issue related to the law OF the foreign state.

True, most of the time it's a distinction without a difference. But it can matter.

So for example, let's say you're licensed in state A but not state B. You set up shop in state B but only practice the substantive law of state A. A lot of lawyers think that's OK, but unless it falls into some narrow federally-related exemptions for stuff like USPTO practice, they'd be wrong. You can't practice law IN a state where you're lot licensed, regardless of what state you might be practicing the law OF.

Conversely, let's say you are licensed in state A and a client comes to your office in state A to ask you a question about the law of state B. A lot of lawyers think it would NOT be OK to answer that question, but this too would be incorrect, as the issue would turn on competence not UPL as you're not practicing "in" a state in which you are not licensed. You didn't go to court there, you didn't set up an office there or market yourself to clients there. You didn't practice law in a state in which you are not licensed.

I think your situation has much in common with the latter scenario. You didn't practice law IN a state in which you are not licensed merely because you started working on an issue that happens to involve the substantive law OF another state. Were it otherwise, every corporate lawyer in the country would need to get licensed in Delaware.

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fettywap (Jun 21, 2018 - 9:24 pm)

No. Is this relative going to report you to the bar? You're allowed to help out family as their family.

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patenttrollnj (Jun 21, 2018 - 10:52 pm)

Was this even a legal representation?

Non-lawyers negotiate contracts all the time, so what you did may not necessarily be a legal representation as defined by the rules of practice.

Regardless, once you became aware of all the facts, you acted accordingly. I wouldn't worry about it.

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flharfh (Jun 22, 2018 - 5:20 am)

Yeah, merely negotiating a transaction is not the practice of law.

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onehell (Jun 22, 2018 - 4:51 pm)

Theoretically, yes it is. My state specifically includes "Preparing any document in any medium intended to affect or secure legal rights" within the definition of practice of law. But just because something is the practice of law doesn't mean it is the UNAUTHORIZED practice of law. Maybe there is some attorney who can be said to be supervising. Or, as I said above, using the substantive law OF a jurisdiction doesn't necessarily mean you're practicing IN that jurisdiction.

And as a practical matter there's a huge distinction between theory and what actually gets prosecuted. As a practical matter, the bar doesn't go after anyone if no one complains, and no one complains if no one appeared in court, if no money changed hands, and if there was no fraud (like actually lying about being a lawyer licensed in the jurisdiction). It's absolutely true that organizations all over the country employ God knows how many "contract specialists" many of whom could arguably be committing UPL, but the simple reality is that no one complains.

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isthisit (Jun 22, 2018 - 7:16 am)

You're fine OP. You sent emails from your home state (where you're licensed) on behalf of a client who is family, you did this gratis, and on a single transactional matter.

No one is going to report you the bar because you didn't do anything sanctionable. People get in their own heads all the time, especially lawyers. You're fine OP.

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loser12 (Jun 22, 2018 - 10:25 am)

They did threaten if I don't get an unrealistic expectation or pay their rent, they will report me to the bar. They have a personality disorder, which I feel bad about.

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jeffm (Jun 22, 2018 - 10:37 am)

Under a threat like that, I'm sure you've done the research...

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loser12 (Jun 22, 2018 - 10:45 am)

I'm calling the bar to see whether I can negotiate on her behalf. If they say no, I may just dip into my savings to pay the balance of her remaining lease (like 25% of my savings).

The true essence of being a loser is winning in every area of life - professionally and in one's personal life, but always being brought down by the family you were born into. It's a different relative every few months, and the crazy thing is that none of the people I have chosen - friends and girlfriends have ever tried to take advantage of me. Helping to finance one's sister's wedding, helping with mortgage while I live with a roommate. It just sucks, but it's my family. The one thing is if I lose my license, I'm done.

#venting.

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guyingorillasuit (Jun 22, 2018 - 12:24 pm)

OP, who threatened you that they will report you? Your own client/relative?

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loser12 (Jun 22, 2018 - 12:57 pm)

Yes. I said I may have to remove myself from it because of the state issue. She just wants money (I come from an unethical, deadbeat family), and I don't mind pushing off getting off an engagement ring or making a down payment on a home. I've always had to do that because of my family, but I'm concerned about being able to one day have what I consider a happy life, which is why I care about the license. I'll pay her what I've saved these past few months, and that will be that. In this situation, I do think my sister is right re: the landlord dispute, but she's also always a fan of shaking others down (as is my entire family, unfortunately).

I'm more concerned about opposing counsel/landlord who I was aggressive with reporting me if they know I did something wrong because my e-mails said I was only licensed in my home state and that I was working for an immediate relative. At the time, I didn't realize it may be wrong.

I also don't want to dig into my savings if I could have licensing issues as I'd need this money to hire a lawyer, try to start over, etc. When I called my parents to try to talk sense into this sibling, I was told that you are the family you're born into or some other bs that maybe I should've known better than become a lawyer given the way my family is. I've obviously learned my lesson about helping them, but want to minimize damage.

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esquirewalletsmatter (Jun 22, 2018 - 1:14 pm)

You’re fine. Chill out.

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jeffm (Jun 22, 2018 - 2:19 pm)

Be glad you learned your lesson on something chumpy like this. Don't represent family, except for something uncontroversial and menial (if even then).

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loser12 (Jun 22, 2018 - 2:23 pm)

Literally, the only people who have ever been dishonest with me have been family. Nobody else.

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superttthero (Jun 22, 2018 - 2:10 pm)

This thread has been a little hard to follow.

So your sister is threatening you with a bar beef only because they have this information over your head? Or did you mess something up? Or do they think that you dropping out at this stage in the game is hurting their interests? I'm confused what her problem is with you.

Because you are also worried about the opposing counsel and the landlord, paying off your sister doesn't really solve it.

My advice, use your brain, education, and research the issue. Pay an ethics/malpractice attorney 2-3 hours of time to advice you on whether you did in fact violate a rule. If you feel confident with your research and the advice that you will not be in trouble, and I think you won't given that you worked from within your state and immediately recused yourself when you realized your error, and tell your sister to pound sand.

Really man, I don't mean this as an insult, and I understand that worrying about your license can be nerveracking (I had a complaint against me dismissed once), but you can't let scumbags, family or not, push you around. Stop being a loser12.

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loser12 (Jun 22, 2018 - 2:21 pm)

I don't think my sister would actually report me, especially if I agreed to cover her rent.

I am concerned opposing counsel, the landlord would because I was open about not being licensed in that state. (At the time, it didn't occur to me I was doing something wrong). It was only 4 hours. I called an ethics committee hotline, but they said the question was too complex to answer right away. It's annoying because in all fairness, my sister's current residence is not physically safe for her to be in because of the landlord and she desperately needs legal help immediately but has no money.

She is staying in a motel while paying rent. The landlord had ignored her for months, and when she said either you fix this or switch my unit, she got a letter saying she could pay 90% of the remaining lease and leave the same day or sue (knowing she has no money).

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superttthero (Jun 22, 2018 - 2:34 pm)

Don't be a chump.

It sounds like you want to be a chump here.

Get a grip.

I'm reading Model Rule 5.5 and the comments to it, and it seems they are really focusing in on establishing an office, "systematic and continuous presence to practice law." My bet, but you should just pay for a couple of hours of advice from someone that knows this law in your state if it'll help you sleep, is that this sounds like a nothingburger.

Don't pay your sister unless you are actually doing it to help her out. Don't be a pushover. Investigate your exposure, and if it's minimal like I think it is, don't give her a penny.

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guyingorillasuit (Jun 22, 2018 - 2:44 pm)

I'll be honest with you: I would not give in under these facts. I do not think you are in any danger of prosecution by any state bar, since you did not do anything that resulted in prejudice to a client. If you give in here, leave the field of litigation and do something else. You are too susceptible to threats to be helpful to your clients. If you allow people to extort you once, it will never stop.

If you cannot fight back in this situation, you have chosen the wrong line of work. I am sorry.

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loser12 (Jun 22, 2018 - 2:50 pm)

I know 5.5. The issue is that the forum state is NJ, and their rule is really expansive. I don't think NJ follows the standard Rule 5.5, and I should've known that before I got involved.

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jeffm (Jun 22, 2018 - 4:45 pm)

Again, check the situs state's criminal statute to see if it's not practicing law if it is for free. Here is Texas' version:

Sec. 38.123. UNAUTHORIZED PRACTICE OF LAW. (a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person:

(1) contracts with any person to represent that person with regard to personal causes of action for property damages or personal injury;

(2) advises any person as to the person's rights and the advisability of making claims for personal injuries or property damages;

(3) etc.

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onehell (Jun 22, 2018 - 4:58 pm)

I think OP was asking about the bar, not about criminal prosecution. Economic gain, for example, likely wouldn't be an element of the offense for bar purposes.

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jeffm (Jun 22, 2018 - 5:26 pm)

You already covered the rule, above. Systematic and continuous presence... Note, too: [12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.

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loser12 (Jun 22, 2018 - 5:25 pm)

Yeah, I care about the bar. Nobody is arresting me here.

C&F said this would be unauthoried practice. There is no pro bono or family member exception. You are not allowed to help anyone in another state regardless of competence unless you pay a large fee and are supervised by another lawyer.

The rationale is that it’s more important for the bar administration to get money than poor people get legal help in a time of desperate need.

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loser12 (Jun 22, 2018 - 6:29 pm)

I recused myself right away once I knew without hurting their case - maybe worked on it for 4 days.

Hopefully if I’m reported, I only get yelled at and no action taken. Idk how nitpicky they are. Don’t want public discipline.

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isthisit (Jun 22, 2018 - 7:20 pm)

You'll be fine. Your relatives sound like losers.

Even if they report you, IMO your conduct doesn't warrant sanctions. It doesn't even warrant a private admonition.

You're fine. Call those losers bluff and go about your business.

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dingbat (Jun 22, 2018 - 10:22 pm)

I have clients who are out of state. I did not solicit them. I do not meet to discuss legal issues in their state, and I do not comment on state-specific laws.

I'm pretty sure you could say the same
Also, C&F aren't total a**holes. You recused yourself as soon as you discovered the issue. 99% of the time, bar authorities will accept that response

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loser12 (Jun 22, 2018 - 11:48 pm)

I’m overly cautious, because I was admitted with a littany of red flags because I disclosed everything and “seemed like a good guy” but said they could easily deny me. Every c&f attorney had told me I was looking at, at least a few year delay. It’s not like I’m a sucker. I just don’t want to reopen that can of worms.

The fact I got a c&f response telling me I can’t worries me, but hopefully I’m okay. I am assuming that I have no obligation to disclose to them that I practiced in their state a bit but recised myself once I realized their rules were stricter than my jurisdiction?

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