In Re: Amendments to Rule Regulating The Florida Bar 4-5.5 ( 2022 )

Supreme Court of Florida
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No. SC21-1379
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IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA
BAR 4-5.5.
February 17, 2022
PER CURIAM.
Previously, in Florida Bar re Advisory Opinion—Out-of-State
Attorney Working Remotely from Florida Home, 318 So. 3d 538 (Fla.
2021), we approved a proposed advisory opinion from the Standing
Committee on the Unlicensed Practice of Law on whether it
constitutes the unlicensed practice of law for an out-of-state
licensed attorney to work remotely from Florida. 1 The Standing
Committee determined that an out-of-state licensed attorney that
lives in Florida, does not hold out to the public as having a presence
in Florida for the practice of law, and merely works remotely for an
out-of-state employer on matters not connected to Florida has not
1. We have jurisdiction. See art. V, § 15, Fla. Const.
established an office or a regular presence in Florida for the practice
of law, as prohibited by Rule Regulating the Florida Bar 4-5.5(b)(1).
318 So. 3d at 541-42.
Following our decision in Florida Bar re Advisory Opinion—Out-
of-State Attorney Working Remotely from Florida Home, we asked
The Florida Bar (Bar) to consider amending the comment to rule
4-5.5 to identify the circumstances under which an out-of-state
licensed attorney may work remotely from Florida. The Bar has
submitted a petition proposing such an amendment, as well as a
number of minor editorial and technical changes to rule 4-5.5. The
proposed amendments were approved by the Board of Governors of
The Florida Bar, and consistent with rule 1-12.1(g), the Bar
published formal notice of its petition in The Florida Bar News. The
notice directed interested parties to file comments directly with the
Court. No comments were received.
Having considered the Bar’s petition, we adopt these
straightforward amendments to rule 4-5.5 with some minor
modifications. The comment to rule 4-5.5 is amended to clarify
that:
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[A] lawyer licensed in another United States jurisdiction
does not have a regular presence in Florida for the
practice of law when the lawyer works remotely while
physically located in Florida for an extended period of
time if the lawyer works exclusively on non-Florida
matters, and neither the lawyer nor any firm employing
the lawyer hold out to the public as having a Florida
presence.
Accordingly, Rule Regulating the Florida Bar 4-5.5 is amended
as set forth in the appendix to this opinion. Deletions are indicated
by struck-through type, and new language is indicated by
underscoring. The amendments shall become effective immediately
upon release of this opinion.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules Regulating the Florida Bar
Joshua E. Doyle, Executive Director, Michael G. Tanner, President,
Gary S. Lesser, President-elect, and Elizabeth Clark Tarbert,
Division Director, Lawyer Regulation, The Florida Bar, Tallahassee,
Florida,
for Petitioner
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Appendix
RULES REGULATING THE FLORIDA BAR
CHAPTER 4 RULES OF PROFESSIONAL CONDUCT
4-5 LAW FIRMS AND ASSOCIATIONS
RULE 4-5.5 UNLICENSED PRACTICE OF LAW;
MULTIJURISDICTIONAL PRACTICE OF LAW
(a) [No Change]
(b) Prohibited Conduct. A lawyer who is not admitted to
practice in Florida may not:
(1)-(2) [No Change]
(3) appear in court, before an administrative agency, or
before any other tribunal unless authorized to do so by the
court, administrative agency, or tribunal pursuant to theunder
applicable rules of the court, administrative agency, or tribunal.
(c) Authorized Temporary Practice by Lawyer Admitted in
Another United States Jurisdiction. A lawyer admitted and
authorized to practice law in another United States jurisdiction who
has been neither disbarred or suspended from practice in any
jurisdiction, nor disciplined or held in contempt in Florida by
reason of misconduct committed while engaged in the practice of
law permitted pursuant tounder this rule, may provide legal
services on a temporary basis in Florida that are:
(1)-(2) [No Change]
(3) in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution
proceeding in this or another jurisdiction, and the services are
not services for which the forum requires pro hac vice
admission, and the services:
(A) if the services are performed for a client who resides in
or has an office in the lawyer’s home state,; or
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(B) where the services arise out of or arearise from or are
reasonably related to the lawyer’s practice in a jurisdiction in
which the lawyer is admitted to practice; or
(4) not within subdivisions (c)(2) or (c)(3), and:
(A) are performed for a client who resides in or has an
office in the jurisdiction in which the lawyer is authorized to
practice,; or
(B) [No Change]
(d) Authorized Temporary Practice by Lawyer Admitted in a
Non-United States Jurisdiction. A lawyer who is admitted only in
a non-United States jurisdiction who is a member in good standing
of a recognized legal profession in a foreign jurisdiction whose
members are admitted to practice as lawyers or counselors at law or
the equivalent and are subject to effective regulation and discipline
by a duly constituted professional body or a public authority, and
who has been neither disbarred or suspended from practice in any
jurisdiction nor disciplined or held in contempt in Florida by reason
of misconduct committed while engaged in the practice of law
permitted pursuant tounder this rule, does not engage in the
unlicensed practice of law in Florida when on a temporary basis the
lawyer performs services in Florida that are:
(1) undertaken in association with a lawyer who is admitted
to practice in Florida and who actively participates in the matter;
or
(2) in or reasonably related to a pending or potential
proceeding before a tribunal held or to be held in a jurisdiction
outside the United States if the lawyer, or a person the lawyer is
assisting, is authorized by law or by order of the tribunal to
appear in the proceeding or reasonably expects to be so
authorized; or
(3) in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution
proceeding held or to be held in Florida or another jurisdiction
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and the services are not services for which the forum requires
pro hac vice admission if the services:
(A) if the services are performed for a client who resides in
or has an office in the jurisdiction in which the lawyer is
admitted to practice,; or
(B) where 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; or
(4) not within subdivisions (d)(2) or (d)(3), and:
(A) are performed for a client who resides or has an office
in a jurisdiction in which the lawyer is authorized to practice
to the extent of that authorization,; or
(B) [No Change]
(5) [No Change]
Comment
Subdivision (a) applies to unlicensed practice of law by a lawyer,
whether through the lawyer’s direct action or by the lawyer
assisting another person. A lawyer may practice law only in a
jurisdiction in which the lawyer is authorized to practice. A lawyer
may be admitted to practice law in a jurisdiction on a regular basis
or may be authorized by court rule or order or by law to practice for
a limited purpose or on a restricted basis. Regardless of whether
the lawyer is admitted to practice law on a regular basis or is
practicing as the result of an authorization granted by court rule or
order or by the law, the lawyer must comply with the standards of
ethical and professional conduct set forth in these Rules Regulating
the Florida Bar.
The definition of the practice of law is established by law and
varies from one jurisdiction to another. Whatever the definition,
limiting the practice of law to members of the bar protects the
public against rendition of legal services by unqualified persons.
This rule does not prohibit a lawyer from employing the services of
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paraprofessionals and delegating functions to them, so long as the
lawyer supervises the delegated work and retains responsibility for
their work. See rule 4-5.3. Likewise, it does not prohibit lawyers
from providing professional advice and instruction to nonlawyers
whose employment requires knowledge of law; for example, claims
adjusters, employees of financial or commercial institutions, social
workers, accountants, and persons employed in government
agencies. In addition, a lawyer may counsel nonlawyers who wish
to proceed pro se.
Other than as authorized by law, a lawyer who is not admitted to
practice in Florida violates subdivision (b) if the lawyer establishes
an office or other regular presence in Florida for the practice of law.
This prohibition includes establishing an office or other regular
presence in Florida for the practice of the law of the state where the
lawyer is admitted to practice. For example, a lawyer licensed to
practice law in New York could not establish an office or regular
presence in Florida to practice New York law. SuchThat activity
would constitute the unlicensed practice of law. However, for
purposes of this rule, a lawyer licensed in another jurisdiction who
is in Florida for vacation or for a limited period of time, may provide
services to their clients in the jurisdiction where admitted as this
does not constitute a regular presence. The lawyer must not hold
out to the public or otherwise represent that the lawyer is admitted
to practice law in Florida. Presence may be regular even if the
lawyer is not physically present here. For purposes of this rule, a
lawyer licensed in another United States jurisdiction does not have
a regular presence in Florida for the practice of law when the lawyer
works remotely while physically located in Florida for an extended
period of time if the lawyer works exclusively on non-Florida
matters, and neither the lawyer nor any firm employing the lawyer
holds out to the public as having a Florida presence. See Fla. Bar
re Advisory Opinion—Out-of-State Att’y Working Remotely from Fla.
Home, 318 So. 3d 538 (Fla. 2021).
Subdivision (b) also prohibits a lawyer who is not admitted to
practice in Florida from appearing in a Florida court, before an
administrative agency, or before any other tribunal in Florida,
unless the lawyer has been granted permission to do so. In order to
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be granted the permission, the lawyer must follow the applicable
rules of the court, agency, or tribunal, including, without limitation,
the Florida Rules of General Practice and Judicial Administration
governing appearance by foreign lawyers. While admission by the
Florida court or administrative agency for the particular case
authorizes the lawyer’s appearance in the matter, it does not act as
authorization to allow the establishment of an office in Florida for
the practice of law. Therefore, a lawyer licensed in another
jurisdiction admitted in a case in Florida may not establish an office
in Florida while the case is pending and the lawyer is working on
the case.
There are occasions in which a lawyer admitted and authorized
to practice in another United States jurisdiction or in a non-United
States jurisdiction may provide legal services on a temporary basis
in Florida under circumstances that do not create an unreasonable
risk to the interests of his or herthat lawyer’s clients, the public, or
the courts. Subdivisions (c) and (d) identify these circumstances.
As discussed with regard to subdivision (b) above, this rule does not
authorize a lawyer to establish an office or other regular presence in
Florida without being admitted to practice generally herein Florida.
Furthermore, no lawyer is authorized to provide legal services
pursuant tounder this rule if the lawyer is disbarred or suspended
from practice in any jurisdiction or has been disciplined or held in
contempt in Florida by reason of misconduct committed while
engaged in the practice of law permitted pursuant tounder this rule.
The contempt must be final and not reversed or abated.
There is no single test to determine whether a lawyer’s services
are provided on a “temporary basis” in Florida and may therefore be
permissible under subdivision (c). Services may be “temporary”
even though the lawyer provides services in Florida 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.
Subdivision (c) applies to lawyers who are admitted to practice
law in any United States jurisdiction, which includes the District of
Columbia and any state, territory, or commonwealth of the United
States. The word “admitted” in subdivision (c) contemplates that
the lawyer is authorized to practice in the jurisdiction in which the
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lawyer is admitted and excludes a lawyer who, while technically
admitted, is not authorized to practice because, for example, the
lawyer is on inactive status. Subdivision (d) applies to lawyers who
are admitted to practice law in a non-United States jurisdiction if
the lawyer is a member in good standing of a recognized legal
profession in a foreign jurisdiction, the members of which are
admitted to practice as lawyers or counselors at law or the
equivalent and subject to effective regulation and discipline by a
duly constituted professional body or a public authority. Due to the
similarities between the subsectionssubdivisions, they will be
discussed together. Differences will be noted.
Subdivisions (c)(1)and (d)(1) recognize that the interests of clients
and the public are protected if a lawyer admitted only in another
jurisdiction associates with a lawyer licensed to practice in Florida.
For these subdivisions to apply, the lawyer admitted to practice in
Florida could not serve merely as a conduit for the out-of-state
lawyer, but would have to share actual responsibility for the
representation and actively participate in the representation. To the
extent that a court rule or other law of Florida requires a lawyer
who is not admitted to practice in Florida to obtain admission pro
hac vice prior tobefore appearing in court or before a tribunal or to
obtain admission pursuant tounder applicable rule(s) prior tobefore
appearing before an administrative agency, this rule requires the
lawyer to obtain that authority.
Lawyers not admitted to practice generally in Florida may be
authorized by law or order of a tribunal or an administrative agency
to appear before the tribunal or agency. This authority may be
granted pursuant tounder formal rules governing admission pro
hac vice or pursuant to formal rules of the agency. Under
subdivision (c)(2), a lawyer does not violate this rule when the
lawyer appears before a tribunal or agency pursuant tounder this
authority. As with subdivisions (c)(1) and (d)(1), to the extent that a
court rule or other law of Florida requires a lawyer who is not
admitted to practice in Florida to obtain admission pro hac vice
prior tobefore appearing in court or before a tribunal or to obtain
admission pursuant tounder applicable rules prior tobefore
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appearing before an administrative agency, this rule requires the
lawyer to obtain that authority.
Subdivision (c)(2) also provides that a lawyer rendering services
in Florida on a temporary basis does not violate this rule when the
lawyer engages in conduct in anticipation of a proceeding or hearing
in a jurisdiction in which the lawyer is authorized to practice law or
in which the lawyer reasonably expects to be admitted pro hac vice.
Examples of this conduct include meetings with the client,
interviews of potential witnesses, and the review of documents.
Similarly, a lawyer admitted only in another jurisdiction may
engage in conduct temporarily in Florida in connection with
pending litigation in another jurisdiction in which the lawyer is or
reasonably expects to be authorized to appear, including taking
depositions in Florida.
Subdivision (d)(2) is similar to subdivision (c)(2), however, the
authorization in (d)(2) only applies to pending or potential
proceedings before a tribunal to be held outside of the United
States.
Subdivisions (c)(3) and (d)(3) permit a lawyer admitted to practice
law in another jurisdiction to perform services on a temporary basis
in Florida 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 are performed for a client who resides in or has an office in
the lawyer’s home state, or 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 if court rules or law so require. The lawyer
must file a verified statement with The Florida Bar in arbitration
proceedings as required by rule 1-3.11, unless the lawyer is
appearing in an international arbitration as defined in the comment
to that rule. A verified statement is not required if the lawyer first
obtained the court’s permission to appear pro hac vice and the
court has retained jurisdiction over the matter. For the purposes of
this rule, a lawyer who is not admitted to practice law in Florida
who files more than 3 demands for arbitration or responses to
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arbitration in separate arbitration proceedings in a 365-day period
is presumed to be providing legal services on a regular, not
temporary, basis; however, this presumption does not apply to a
lawyer appearing in international arbitrations as defined in the
comment to rule 1-3.11.
Subdivision (c)(4) permits a lawyer admitted in another
jurisdiction to provide certain legal services on a temporary basis in
Florida that are performed for a client who resides or has an office
in the jurisdiction in which the lawyer is authorized to practice or
arise out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted, but are not within
subdivisions (c)(2) or (c)(3). These services include both legal
services and services that nonlawyers may perform but that are
considered the practice of law when performed by lawyers. When
performing services which may be performed by nonlawyers, the
lawyer remains subject to the Rules of Professional Conduct.
Subdivisions (c)(3), (d)(3), and (c)(4) require that the services
arise out of or be reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted. A variety of factors
evidence this relationship. The lawyer’s client may have been
previously represented by the lawyer, or may be resident in or have
substantial contacts with the jurisdiction in which the lawyer is
admitted. The matter, although involving other jurisdictions, may
have a significant connection with that jurisdiction. In other cases,
significant aspects of the lawyer’s work might be conducted in that
jurisdiction, or a significant aspect of the matter may involve the
law of that jurisdiction. The necessary relationship might arise
when the client’s activities or the legal issues involve multiple
jurisdictions, for example when the officers of a multinational
corporation survey potential business sites and seek the services of
their lawyer in assessing the relative merits of each. In addition,
the services may draw on the lawyer’s recognized expertise
developed through regular practice of law in a body of law that is
applicable to the client’s particular matter.
Subdivision (d)(4) permits a lawyer admitted in a non-United
States jurisdiction to provide certain services on a temporary basis
in Florida that are performed for a client who resides in or has an
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office in the jurisdiction where the lawyer is authorized to practice
or arise out of or are reasonably related to a matter that has a
substantial connection to a jurisdiction in which the lawyer is
authorized to practice to the extent of that authorization, but are
not within subdivisions (d)(2) and (d)(3). The scope of the work the
lawyer could perform under this provision would be limited to the
services the lawyer may perform in the authorizing jurisdiction. For
example, if a German lawyer came to the United States to negotiate
on behalf of a client in Germany, the lawyer would be authorized to
provide only those services that the lawyer is authorized to provide
for that client in Germany. Subdivision (d)(5) permits a lawyer
admitted in a non-United States jurisdiction to provide services in
Florida that are governed primarily by international law or the law
of a non-United States jurisdiction in which the lawyer is a
member.
A lawyer who practices law in Florida pursuant tounder
subdivisions (c), (d), or otherwise is subject to the disciplinary
authority of Florida. A lawyer who practices law in Florida
pursuant tounder subdivision (c) must inform the client that the
lawyer is not licensed to practice law in Florida.
The Supreme Court of Florida has determined that it constitutes
the unlicensed practice of law for a lawyer admitted to practice law
in a jurisdiction other than Florida to advertise to provide legal
services in Florida which the lawyer is not authorized to provide.
The rule was adopted in 820 So. 2d 210 (Fla. 2002). The court first
stated the proposition in 762 So. 2d 392, 394 (Fla. 1999).
Subdivisions (c) and (d) do not authorize advertising legal services
in Florida by lawyers who are admitted to practice in jurisdictions
other than Florida. Whether and how lawyers may communicate
the availability of their services in Florida is governed by subchapter
4-7.
A lawyer who practices law in Florida is subject to the
disciplinary authority of Florida.
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