5.05.07. Exceptions to the Unauthorized Practice of Law: Provision of Services on a Regular Basis: When Authorized by Law [Rule 5.5(d)(2)]

Rule 5.5(d)(2) makes it clear that a lawyer who is authorized by federal law to engage in practice in a state where they are not licensed is not the unauthorized practice of law.  This is an interesting subsection.  Of course the Supremacy Clause of the U.S. Constitution would allow a lawyer to practice in a state regardless of the state’s rule.  Because this is obvious, some argued that this provision was unnecessary in the text of the rule (and should be relegated to a comment).  However, the committee studying the rule heard testimony that the provision should be placed in the rule because disciplinary authorities threatened discipline despite the Supremacy Clause.

Nissan, a car company that is based out of Japan, has opened a plant in Canton, Mississippi.  The owners of Nissan wanted to relocate a lawyer licensed only in New York to Canton to represent the plant.  The plant also wants a lawyer licensed (and in good standing) in Japan to be a part of the legal team that advises the plant.  Are either of these lawyers engaging in the unauthorized practice of law? 

No.  Rule 5.5(d) expressly provides that neither of these actions constitute the unauthorized practice of law.  One distinction from the prior subsections is that these lawyers can have a permanent presence in the state whereas the prior sections of the rule contemplate that the lawyer will only be acting out of the home state for a temporary time period.