Why it might not be UPL, Part 1

Why it might not be UPL, Part 1


Practice Pending Admission

If you can’t find your opposing counsel in the bar directory, don’t automatically assume something hinky. Your new opposing counsel might be legitimately practicing Arizona law, from an Arizona address, and not be admitted here.

That’s possible for several reasons, one of which is “Practice Pending Admission.” (I’ll explore the other reasons in subsequent posts.) Arizona is one of eight jurisdictions (according to the American Bar Association) that have adopted part or all of the ABA’s Model Rule on Practice Pending Admission. Arizona’s PPA rule took effect January 1, 2016.

Why is it important for you to know what’s UPL? Because Ethical Rule 5.5(a) says that you can’t help someone else (lawyer or non-lawyer) engage in UPL: 

A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. 

By working with an opposing counsel (lawyer or non-lawyer) who is UPLing, you’re violating the rules. See Ariz. Ethics Op. 3-03 (an Arizona lawyer may not draft or help a non-lawyer enforce a contract for UPL services).

As a result of what is now Rule 38(h), Ariz. R. Sup. Ct., a non-Arizona lawyer (already admitted in another jurisdiction) may, under certain conditions, may engage in the “regular practice of law in Arizona” out of an Arizona office for up to 365 days after applying for admission by motion here.

That “admission by motion” part is important to repeat: This avenue is available only to non-Arizona lawyers who are eligible for admission on motion, not anyone who must take the bar exam to become admitted here. So a new law-school grad, for example, is not eligible to “practice pending admission.” Neither may a lawyer who is not licensed in a jurisdiction with which Arizona has reciprocity. (That latter category includes California lawyers who are not licensed anywhere other than California, because Arizona doesn’t have reciprocity with California.

Assuming the non-Arizona lawyer qualifies, the non-Arizona lawyer’s application for admission first must be filed and “deemed complete” by the Committee on Character and Fitness. Then, to practice here pending admission, the non-Arizona lawyer:

·    Must be associated with and supervised by an Arizona lawyer;

·    Must include in all written communications with the public and clients this language: “Arizona practice temporarily authorized pending admission under Ariz. R. Sup. Ct. 38(h). Supervision by [name of Arizona attorney], a member of the State Bar of Arizona”;

·  Must continue to be a member in good standing wherever admitted; and

·  Cannot be the subject of a disciplinary matter in any other jurisdiction. 

The PPA lawyer also may apply to appear in court pro hac vice. If you’re familiar with pro hac vice, you know that historically it has been restricted to lawyers who aren’t residents of this state or regularly employed here. But PPA lawyers, as well as registered in-house-counsel lawyers, now are eligible to appear in court pro hac vice. (I’ll address changes to the in-house counsel and pro hac vice rules in a subsequent post.)

The PPA lawyer’s ability to practice ends immediately if the lawyer withdraws his/her admission application; the application is denied; the applicant fails to remain in compliance with the other conditions; the applicant is disbarred, suspended, or placed on disability inactive status in any other jurisdiction in which the applicant is licensed to practice law; or the applicant fails to comply with the notification requirements of paragraph (h)(3) of this rule.

Pro tip: If you have any concerns about your opposing counsel, ask him or her: “Hey, I don’t find you in the bar directory. Did you just recently get admitted?” That person should be up front about the circumstances under which he/she is able to practice in this jurisdiction. 

Next up: Registered in-house counsel. (Did you even know they exist?)

Why it might not be UPL, Part 2

Why it might not be UPL, Part 2

Rule-change petitions that warrant your attention

Rule-change petitions that warrant your attention