5.05.04. Exceptions to the Unauthorized Practice of Law: Provision of Services on a Temporary Basis When Related to Pending or Potential Arbitration/Mediation [Rule 5.5(c)(3)]

Rule 5.5(c)(3) allows a lawyer to provide legal services temporarily in a state where the lawyer is not licensed in connection with the representation of a client in pending or anticipated alternative dispute resolution, including arbitration or mediation.  The arbitration must arise in connection with a lawyer’s practice where they are licensed.  In other words, the rule does not allow a lawyer to be a roving arbitration practitioner – the arbitration must be linked to the lawyer’s practice where she is licensed.  The anticipation is that the lawyer will be acting on behalf of an existing client.

Luanne Lawyer, licensed in Idaho, represents Coleman Construction, which is based in Idaho but has jobs all over the country.  Coleman is building a high school in Illinois and is now in a dispute with the owner of the high school.  The contract provides that any claims related to the construction must be arbitrated in Colorado.  Can Lawyer represent Coleman in the arbitration in Colorado?

Yes.  The elements of Rule 5.5(c)(3) are satisfied.  The proceeding is related to an alternative dispute resolution proceeding that arose out of Lawyer’s representation of Coleman in Idaho – where she is licensed.  This fact pattern demonstrates one of the reasons that representation in ADR is not considered the unauthorized practice of law—the law of Colorado has nothing to do with the construction.  It was chosen as the location for the arbitration merely as a matter of convenience.