Q: Dear Ethics Lawyer, I am a lawyer admitted in a couple of Midwestern states, representing a client in a state where I am licensed that has a dispute with an opposing party in a state where I am not licensed. For various reasons, if the case cannot be settled and the facts develop as I expect, we will most likely file suit in that other state, at which time I’ll get local counsel and get admitted pro hac vice. Until then, can I rely upon the temporary practice provisions of Model Rule 5.5 to attend a pre-litigation settlement meeting without local counsel, and to do some pre-suit investigation and witness interviews, either there or by zoom from a state where I am licensed?
A: Let’s talk about Rule 5.5 in the context of litigation. The rule has undergone a lot of changes in recent years, a lot of which has been adopted in most states, including changes permitting certain types of temporary practice within a state although not licensed there. But there are still differences in both the rule and its interpretation between states, so it’s important to always check the version in place where you’re proposing to be active to make sure you’re on solid ground. Rule 5.5(b)(1),(2) and (3) provide “temporary practice” authorization in a jurisdiction where adopted, relating to litigation. Rule 5.5(b)(2) applies here to authorize temporary practice where it is reasonably related to a “potential proceeding” before a tribunal where the lawyer reasonably expects to be authorized (e.g., admitted pro hac vice). But, be careful. Physical presence is not required—a communication sent into a state from elsewhere can be construed as practice within that state. And not every aspect of a matter is accepted as sufficiently relating to a proceeding before a tribunal.
For example, Illinois Advisory Op. 23-01 (Mar. 2023) opined that an out-of-state lawyer not licensed in Illinois could not send a demand letter into the state without local Illinois counsel notwithstanding the 5.5(b)(2) temporary practice authorization, because a demand letter seeking to settle a matter would not be preliminary work associated with a pending or potential proceeding in which the out-of-state lawyer would be admitted pro hac vice.