The Oklahoma Bar Journal August 2023

some connection to Colorado, the outcome may have been different. Indeed, Rule 5.5 is not an absolute bar to interstate practice. It contains a safe harbor provision permitting a lawyer licensed in a U.S. jurisdiction who is not dis barred or suspended in a jurisdic tion to provide legal services on a temporary basis in four specifically enumerated instances: when the services 1) “are undertaken in association with a lawyer who is admitted to practice in th[e] juris diction and who actively partici pates in the matter”; 2) “are in or reasonably related to a pending or potential proceeding before a tri bunal in this or another jurisdic tion, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized” 49 ; 3) “are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolu tion 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 and are not services for which the forum requires pro hac vice admission”; or 4) “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” 50 The list is not nec essarily exhaustive. Comment 5 provides, “The fact that conduct is not so identified does not imply that the conduct is or is not autho rized.” 51 And, “There is no single test to determine whether a law yer’s services are provided on a ‘temporary basis.’ ... Services may be ‘temporary’ even though the lawyer provides services in a juris diction where not admitted 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.” 52 The Ohio Board of Professional Conduct has opined that an “out of-state lawyer who is admitted and in good standing in another United States jurisdiction may represent, on a temporary basis, an out-of-state lending institution concerning loans made to persons and entities in Ohio secured by real property in Ohio” without engaging in the unauthorized practice of law, pursuant to Rule 5.5. 53 This includes preparing loan documents, negotiating the terms of an agreement and attending the closing in Ohio. 54 In arriving at this opinion, the board reasoned that if “the out-of-state lawyer’s services are provided to a current client, the transaction relates to the client’s out-of-state business, and significant aspects of the work are conducted in the jurisdiction of licensure, then the represen tation is ‘arising out of or are reasonably related’ to his or her practice in the licensing jurisdic tion.” Furthermore, legal services typically required to complete a loan transaction are “usually of a short duration” and, thus, can be reasonably viewed as provided on a temporary basis. 55 In the Minnesota disciplinary proceeding discussed, supra , the court took a narrow approach, refusing to find the “temporary basis” exception applied because, for one, the attorney knew further litigation was unlikely as a court had already entered judgment, so he was merely negotiating a debt resolution. 56 The court observed, “Rule 5.5(c)(2), by its plain lan guage, requires more than an attorney’s speculation that the

affirmed. 46 The Colorado attor ney appealed the decision to the Minnesota Supreme Court, arguing he did not run afoul of Minnesota’s version of Rule 5.5 because he did not practice law in Minnesota. 47 The court disagreed: Appellant contacted D.R., a Minnesota lawyer, and stated that he represented Minnesota clients in a Minnesota legal dispute. This legal dispute was not interjurisdictional; instead, it involved only Minnesota residents and a debt arising from a judgment entered by a Minnesota court. Appellant instructed D.R. to refer all future correspondence to him, and he continued to engage in corre spondence and negotiations with D.R. over the course of several months. Appellant requested and received financial docu ments from his Minnesota clients and advised them on their legal options. By multiple e-mails sent over several months, appellant advised Minnesota clients on Minnesota law in connection with a Minnesota legal dispute and attempted to negotiate a resolution of that dispute with a Minnesota attorney. Appellant had a clear, ongoing attorney-client rela tionship with his Minnesota clients, and his contacts with Minnesota were not fortuitous or attenuated . Thus, there is ample support for the Panel’s finding that appellant practiced law in Minnesota. 48 Thus, it matters not where the attorney is physically located when the services are performed. It matters, instead, where the clients are located and where the dispute arises. Had the attorney’s in-laws’ legal troubles had at least

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.

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THE OKLAHOMA BAR JOURNAL