5.05.01. Defining the Practice of Law and Prohibition on Continuous Presence [Rule 5.5(a) & (b)]

With that background, we can start to break down the current rule.  Rule 5.5(a) states that a lawyer shall not “practice law” (or assist another in practicing law) where it would violate the rules of the state where the action occurs.  This may seem like an uncontroversial statement.  However, the ABA commission studying the issue did contemplate proposals that would eliminate state-based regulation of the practice of law.  This subsection makes it clear that states will continue to be at the center of regulation.  Similarly, Rule 5.5(b) was added to make it clear that the exceptions to the unauthorized practice included in the rest of the Rule are not meant to eliminate classic prohibitions on a lawyer opening up a permanent office in a state where the lawyer is not licensed.  The subsection prohibits:  (1) establishing an office or “continuous presence” in a state to practice law where the person is not licensed to practice and (2) holding out to the public that the person is authorized to practice law in a state where it is not true.

The remaining subsections of Rule 5.5 provide exceptions to the definition of the practice of law.  As you go through the rest of Rule 5.5, it is important to remember that the purpose was to make express what has been going on in practice.  Proponents of the amendment argued that lawyers should not have to continue to operate under a presumption that a disciplinary authority would not seek to regulate what, under a plain reading of the unauthorized practice of law definition, would be prohibited.