Rules of Professional Conduct

This comment applies generally, but specifically to roc 05.05. It is a really bad idea to adopt a rule that is less than a page long that takes more than 3 pages to explain. This is so turgid and oblique that it can be interpreted many different ways. Why not just go the whole way and say, ‘anything we don’t like you will be punished for.’ Since the rule itself is not specific, and the comments are not binding, that is what this amounts to.

The Utah State Bar (Bar) objects to the proposed amendments to the Utah Rules of Professional Conduct (“URPC”) Rule 5.5(d) because subsections (d)(1) and (d)(2) would allow attorneys admitted in another jurisdiction to set up “an office or other systematic and continuous presence” in Utah and provide legal services either to an employer or to practice federal law with no other restrictions. In contrast to proposed URPC Rule 5.5(d)(1), house counsel attorneys are required to be licensed in Utah, and the federal practice exception referred to in (d)(2) is much narrower than the language implies.
The Proposed URPC Rule 5.5(d)(1) effectively nullifies Rule 14-719 of the Rules Governing Admission to the Utah State Bar (“RGA”) which requires attorneys practicing as house counsel to have a Utah license. While Comment 17 to URPC Rule 5.5 advises house counsel attorneys that they “may be subject to registration or other requirements,” the comments to the URPC are only advisory. Many attorneys do not read the comments and will not recognize that they need to be licensed to practice as house counsel in Utah. See RGA Rule 14-719(d) (stating that attorneys practicing as house counsel who do not file a timely application are engaging in the unauthorized practice of law). As written, proposed URPC Rule 5.5(d) and Comment 17 are inadequate to put attorneys working as house counsel on notice of Utah’s licensing requirements.
Utah is not unique in its position that out-of-state lawyers who establish an office and/or systematic presence in Utah as house counsel should be reasonably regulated. Currently, 36 U.S. jurisdictions have house counsel licensing requirements similar to Utah’s. RGA Rule 14-719 requires attorneys serving as house counsel to file an application, prove that they are in good standing in another jurisdiction, and agree to be bound by Utah rules governing attorney conduct and discipline before being admitted. However, to ensure flexibility in hiring, a number of requirements normally imposed on attorney applicants are absent from RGA Rule 14-719. For example, house counsel attorneys are not required to take the bar examination and are not required to have a J.D. from an ABA-approved law school. In addition, under the safe-harbor provision, non-Utah attorneys are allowed to work in Utah as house counsel while their application is pending, provided that they file an application within six months of accepting employment. See Rule 14-719(d)(2). Thus, under RGA Rule 14-719, Utah businesses are free to hire the house counsel of choice while the Bar retains the tools needed to ensure that lawyers working in the state are ethical and subject to Bar discipline.
Similarly, proposed URPC Rule 5.5(d)(2) also implies that non-Utah attorneys may practice federal law here without a license. To the contrary, the United States District Court for the District of Utah requires Utah residents to be active members of the Utah Bar and temporary admission is only granted to resident attorneys not licensed in Utah who are able to affirm in their motion for pro hac vice admission that they either have taken the Utah bar examination and are awaiting the results or are scheduled to take the next bar examination. See DUCivR 83-1.1(d)(2). The only other exception provided under the District Court’s practice rule is for attorneys employed by the federal government who are allowed to work in Utah for up to 12 months before they are required to have a license here. Id. at (e). In addition, the Bar is aware of specialized federal courts, such as immigration courts or courts handling social security disability requests that permit attorneys who are not licensed in Utah to represent clients. However, other than these limited exceptions, the Bar is not aware of any federal law that permits a resident, non-Utah attorney to practice federal law without having a Utah license. Furthermore, Comment 18, the comment to URPC Rule 5.5(d)(2), does nothing to clarify the licensing requirements for attorneys practicing federal law in Utah.
Subsection (d) serves no functional purpose as Rule 14-719 addresses house counsel licensing and existing federal court rules already identify the instances where out-of-state attorneys are permitted to practice federal law in Utah; therefore, the most effective way to eliminate confusion about Utah’s licensing requirements is simply to remove subsection (d) from URPC Rule 5.5, and the associated comments. Alternatively, if the Court prefers to retain subsection (d), the Bar offers the following revision.
Rule 5.5 Unauthorized Practice of law, Multijurisdictional Practice of Law.
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(d) A lawyer admitted in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may only provide legal services ¬through an office or other systematic and continuous presence in this jurisdiction without first obtaining a license if:
(d)(1) the services are provided to the lawyer’s employer or its organizational affiliates while the lawyer has a pending house counsel application and are not services for which the forum requires pro hac vice admission; or
(d)(2) the services provided are authorized by specific federal law or other law or rule of this jurisdiction.
Comment . . . .
[17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer is subject to Utah admission and licensing requirements, including assessments for annual licensing fees and client protection funds and mandatory continuing legal education. See Rule 14-718 of the Supreme Court Rules of Professional Practice, Licensing of Foreign Legal Consultants, and 14-719 of the Supreme Court Rules of Professional Practice, Qualifications for Admission of House Counsel Applicants.
[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by a specific federal law or court rule. See, e.g., Rule DUCivR 83-1.1, Rules of Practice of the United States District Court of the District of Utah, or Rule 14-804 of the Supreme Court Rules of Professional Practice, Special Admission Exception for Military Lawyers.
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