Joint Venturing with Out-of-State Lawyers for Particular Matters

Louisiana lawyers stand willing and ready to assist victims of hurricane damage in receiving the compensation they deserve. Lawyers licensed in Texas, Mississippi, and Arkansas, just to name a few, are also willing and ready to assist Louisiana lawyers in settling or litigating the hurricane damage claims. The Louisiana and out-of-state lawyers join forces to assist in this joint effort to serve hurricane victims. These Louisiana licensed lawyers and out-of-jurisdiction lawyers can structure themselves as joint-venture enterprises, voluntary associations, or establish an “of counsel” arrangements to accomplish their goals. However, both the Louisiana lawyer and the out-of-state lawyer must be cognizant of avoiding and assisting the unauthorized practice of law.

Louisiana Rule of Professional Conduct Rule 5.5

Under the standards of care and conduct governing Louisiana lawyers, a lawyer who is not admitted to practice law in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

See La. Rules of Prof’l Conduct, r. 5.5(b). Unless authorized by law of the Rules of Professional Conduct, “a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b)(1) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law.” See ABA Model Rules of Prof’l Conduct, r. 5.5, cmt 4. According to the comments to Model Rule 5.5, “[p]resence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” See id.; see also Rules 7.1(a) and 7.5(b).

However, there are circumstances in which a lawyer admitted in another jurisdiction may provide legal services on a temporary basis in this jurisdiction. Under the rules, a lawyer admitted in another jurisdiction may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

See La. Rules of Prof’l Conduct, r. 5.5(c). This lawyer must not be disbarred or suspended from practice in any jurisdiction. See id.

Under Rule 5.5, the non-Louisiana licensed lawyers and staff can come to Louisiana to work on legal matters to the extent the matters “are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.” See La. Rules of Prof’l Conduct, r. 5.5(b)(1). Under paragraph (c)(1), a non-Louisiana licensed lawyer may associate with a lawyer admitted to practice in this jurisdiction. But, for this paragraph to apply, “the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.” See ABA Model Rule, r. 5.5, cmt. 8.

Moreover, the rules permit the non-Louisiana lawyer to provide legal services only on a temporary basis in this jurisdiction. “There is no single test to determine whether a lawyer’s services are provided on a ‘temporary basis’ in this jurisdiction, and may therefore be permissible under paragraph (c).” See ABA Model Rules of Professional Conduct, r. 5.5, cmt. 6. The ABA Model Rules recognize that “[s]ervices may be ‘temporary’ even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.” Id.

Importantly, lawyers associating together under these conditions will be considered a “firm” under the Rules of Professional Conduct. Rule 1.0 defines a “firm” as “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.” See La. Rules of Prof’l Conduct, r. 1.0. The classification of an association as a “firm” has vast consequences for purposes of imputation of conflicts of interest. 

Classification of an association of lawyers as a “firm” requires the lawyers to frequently and willing engage in conflicts checks. Moreover, the rules relating to the imputation of conflicts will apply to a “firm.” Louisiana Rule 1.10(a) sets forth a simple rule: if one lawyer in the firm has a nonpersonal conflict of interest, the rest of the lawyers in the firm do as well. Rule 1.10 imputes disqualification to all members of the disqualified lawyer’s “firm.” Additionally, a lawyer who is associated with a law firm in an “Of Counsel” capacity is treated like any other lawyer associated with the firm for purposes of imputation of conflicts of interest. In In re Fuerst, 157 So. 3d 569, 577 (La. 2014), the court stated that “[a] lawyer who is ‘Of Counsel’ to a law firm is considered to be a member of the firm for purposes of analyzing imputed disqualification questions.” Therefore, a lawyer who is loosely associated with a firm in an “of counsel” capacity is treated no differently from any other firm lawyer.

Louisiana Revised Statute Section 37:213

The Louisiana Legislature has also passed legislation seeking to define and regulate the practice of law in Louisiana. Louisiana Revised Statute section 37:213 provides as follows:

No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 8 of Title 12 of the Revised Statutes, and no partnership or limited liability company except one formed for the practice of law and composed of such natural persons, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law, shall:

(1) Practice law.

(2) Furnish attorneys or counsel or an attorney and counsel to render legal services.

(3) Hold himself or itself out to the public as being entitled to practice law.

(4) Render or furnish legal services or advice.

(5) Assume to be an attorney at law or counselor at law.

(6) Assume, use, or advertise the title of lawyer, attorney, counselor, advocate or equivalent terms in any language, or any phrase containing any of these titles in such manner as to convey the impression that he is a practitioner of law.

(7) In any manner advertise that he, either alone or together with any other person, has, owns, conducts, or maintains an office of any kind for the practice of law.

See La. R.S. § 37:213 (emphasis added).

Under La. R.S. § 37:213, the non-Louisiana licensed lawyers can come to Louisiana to work on legal matters without issue under this statute assuming they are part of the “partnership or limited liability company” “formed for the practice of law and composed of such natural persons, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law” elsewhere. See La. R.S. § 37:213.

Conclusion

In conclusion, a Louisiana lawyer or law firm can certainly work with non-Louisiana licensed lawyers and staff to assist him in this jurisdiction so long as they are voluntarily associated together and the Louisiana lawyer actively participates in the matters.

Please follow and like us: