California
Attorney Ethics Counsel

Remote practice and multistate jurisdictional practice (MJP) have been hot topics highlighted by the pandemic.  However, we cannot discuss these subjects without considering the unauthorized practice of law (UPL).  UPL is not just an issue for non-lawyers.  Unfortunately, under California’s (and most other states’) rules and laws, it is also a concern for lawyers who practice in jurisdictions where they are not licensed.  A UPL violation could jeopardize your ability to practice in every jurisdiction where you’re admitted and also subject you to civil and criminal liability.

Now that you’re paying attention, it is important to understand what qualifies as UPL and the permitted exceptions. Similar to the American Bar Association’s (ABA) Model Rule (MR) 5.5, California’s Rules of Professional Conduct (CRPC), Rule 5.5, addresses UPL. CRPC Rule 5.5(b) mandates that “[a] lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.  See BASF Legal Ethics Opinion 2021-1 (August 2021) for additional insight and interpretation of California’s UPL rules and laws.

As encouraged by MR 5.5(d), California and other states allow for certain temporary practice exceptions.  One of the exceptions permits out-of-state licensed lawyers to work in California as in-house corporate counsel for a qualifying institution so long as the lawyers are registered with the State Bar of California.  CRPC 5.5, Comment; Cal. Rules of Court 9.46; see MR 5.5(d)(1), Comments 7 & 16. California’s in-house registration requirement is only for out-of-state licensed lawyers, not California-licensed lawyers. Lawyers with a license from outside of the US cannot qualify as in-house counsel in California but may qualify under another temporary practice exception for foreign legal consultants. See Cal. Rules of Court 9.44.

The in-house counsel registration requirements include, but are not limited to, mandating that the lawyer is an active licensee in good standing of the bar of a United States state, jurisdiction, possession, territory, or dependency; a resident of California; abides by all of California’s laws and ethics rules; and practices exclusively for the single qualifying institution (except for pro bono services permitted through eligible legal aid organizations).  Cal. Rules of Court 9.46; In-House Counsel State Bar Rules.  Although lawyers who qualify under this exception do not have to sit for California’s bar exam, they do have to submit to the State Bar’s moral character determination as a part of the registration process.  If the application of moral character is approved and the in-house counsel registration is granted by the Bar, each certified in-house lawyer must renew the registration annually and satisfy California’s Minimum Continuing Legal Education (MCLE) requirements.

October 10, 2022

Be Warned: CA In-House Corporate Counsel Must Register With State Bar

Remote practice and multistate jurisdictional practice (MJP) have been hot topics highlighted by the pandemic.  However, we cannot discuss these subjects without considering the unauthorized practice of law (UPL).  UPL is not just an issue for non-lawyers.  Unfortunately, under California’s (and most other states’) rules and laws, it is also a concern for lawyers who […]

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May 31, 2022

Using “Conflict Counsel” In Vetting Lateral Transitions

With the ever-increasing mobility of lawyers, accurately assessing conflicts of interest in any lateral transition is more important than ever. The consequences of getting it wrong are significant, ranging from potential disqualification and client liability issues to discipline.

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April 20, 2022

The National Push to Change UPL Rule 5.5 Has Begun

On April 18, 2022, the Association of Professional Responsibility Lawyers (APRL), a national organization made up of over 400 lawyers, law professors, and judges from around the country who focus on legal ethics and professional responsibility, published and sent to ABA President Reginald Turner its long-awaited “proposal for the replacement of Model Rule 5.5 to […]

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April 08, 2022

California Disqualification Decision and Claims of “Unreasonable Delay”

A frequent tool in the defense arsenal of lawyers facing a disqualification motion is a claim that there was an “unreasonable delay” in bringing the motion. Some lawyers and clients tend to assume, incorrectly, that a moving party’s knowledge of a disqualifying conflict will be presumed if the movant was a party to a former […]

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March 29, 2022

Legal Ethics and Your Law Firm Partnership Agreement

You may agree that your firm’s partnership agreement, or shareholders’ agreement, and other firm governing documents, are critical to your firm’s business operations and success. And you would be right about that. But beyond business purposes, these firm agreements are critical to ensure compliance with your legal ethics duties. How so?  Well-developed and drafted firm […]

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