Can an attorney give legal advice on a federal issue to an out-of-state client?

Question

Can a lawyer in one state give advice to a client in another state if only federal law is relevant?

Answer 1

It's a more complicated question to answer than you would think. The relevant rule of professional conduct is Rule 5.5 (which has the same numbering in every U.S. jurisdiction, but not identical substantive language).

Generally, one can represent a client based in the state (even if it has offices in many states including one where the lawyer's office is) where a lawyer practices anywhere the lawyer can competently do so. Tribunal admission in tax and patent practice is national, but in Article III federal courts have admission to practice on a court by court basis.

Part of the issue is that no fact pattern that I client is in is ever 100% federal or 100% state with some rare exceptions like immigration court or federal tax court or patent cases. Most client situations have both state and federal dimensions that a competent lawyer is aware of and counsels on, even if the client perceives it as a federal law issue and even if the federal law issue may be the most important one.

The rule and the official comments in Colorado are as follows: Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law (quoted in pertinent part which also contains provisions related to employing disbarred lawyers and paralegals):

Colorado Rules of Professional Conduct

Law Firms and Associations

As amended through Rule Change 2018(6), effective April 12, 2018

(a) A lawyer shall not:

(1) practice law in this jurisdiction without a license to practice law issued by the Colorado Supreme Court unless specifically authorized by C.R.C.P. 204 or C.R.C.P. 205 or federal or tribal law;

(2) practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction; . . .

COMMENT

[1] The definition of the practice of law is established by law and varies from one jurisdiction to another. In order to protect the public, persons not admitted to practice law in Colorado cannot hold themselves out as lawyers in Colorado or as authorized to practice law in Colorado. Rule 5.5(a)(1) recognizes that C.R.C.P. 204 and C.R.C.P. 205 permit lawyers to practice law in accordance with their terms in Colorado without a license from the Colorado Supreme Court. Lawyers may also be permitted to practice law within the physical boundaries of the State, without such a license, where they do so pursuant to Federal or tribal law. Such practice does not constitute a violation of the general proscription of Rule 5.5(a)(1). . .

C.R.C.P. 204 and 205 pertain to the practice of law by law students in clinical courses with suitable sponsors and lawyer supervision.

The American Bar Association Model Rule contains an additional subsection not adopted in Colorado (which is adopted in a majority of jurisdictions) which states:

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, 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;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative 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 and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.