The Oklahoma Bar Journal August 2023

on a “consideration of the acts of service performed in each case.” 39 In practice, the application of Rule 5.5 and states’ unauthorized practice of law statutes may lead to harsh results. Following Birbrower , the Minnesota Supreme Court refused to make an exception for an out-of-state lawyer providing legal services to family members who lived in Minnesota. Many of us would not think twice about helping a family member living in another state who turns to us for legal advice because we are the attorney in the family. The ability to practice law virtually makes that a more viable option. The attorney, who was licensed in Colorado, was asked by his in-laws to assist them in negoti ating a judgment entered against them in Minnesota for $2,368.13 in favor of their condo associa tion. 40 The attorney sent a letter to the condo association’s attorney informing him that he was repre senting his in-laws, and thereaf ter, the two attorneys exchanged approximately two dozen emails discussing the debtors’ assets,

ability to pay and potential for a foreclosure action. 41 At one point, the Colorado attorney attached financial disclosure forms to an email and made a settlement offer. 42 Early on in their commu nications, the condo association attorney asked the Colorado attor ney whether he was licensed in Minnesota, and the attorney told him he was not. 43 He said that if he had to file a lawsuit, he would engage local counsel. In one of their final exchanges, the condo association’s attorney asserted that the Colorado lawyer was engag ing in the unauthorized practice of law, and the condo association later filed an ethics complaint. 44 Even after that, the attorney for the condo association sent additional emails to the attorney asking whether the settlement offer was still on the table. 45 The director of the Office of Lawyers Professional Responsibility issued a private admonition to the Colorado attorney for engaging in the unauthorized practice of law, and a panel of the Lawyers Professional Responsibility board

firm’s extensive activities within California went beyond any recog nized exception to the statute. 36 The Birbrower decision showed there is more at stake for attorneys violating unauthorized practice of law statutes than professional discipline. The court upheld, in part, the intermediate court’s rul ing that the fee agreement between ESQ and the firm was unenforce able, finding the lower court was correct in barring the firm from recovering fees generated under the agreement for unauthorized services performed in California. 37 The higher court disagreed with the intermediate court to the extent it implicitly barred the firm from recovering fees generated under the agreement for the limited legal services performed in New York to the extent they did not constitute the practice of law in California, even though services were per formed for a California client. 38 Applying Birbrower today, it likely matters very little whether the out-of-state attorney sets foot in a state in which they are not licensed. A handful of videocon ferences or teleconferences in which the attorney discusses the strategy in resolving a dispute, gives legal advice or negotiates a settlement in another state may be considered more than just “for tuitous or attenuated” and rise to the level of “sufficient activities” to constitute the unauthorized practice of law. It remains to be seen, though, whether the answer would be different under even slightly different facts: for exam ple, if the Oklahoma attorney is advising the out-of-state client on the application of Oklahoma law for a dispute pending in another state. That is the predicament pre sented by an issue that depends

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

10 | AUGUST 2023

THE OKLAHOMA BAR JOURNAL