Oct. 6, 2016
By Karen Rubin
Has your mother-in-law ever asked you for legal help? Giving legal advice to family members can be challenging for lots of reasons
—but it often comes with the territory when you have a law license. A Colorado lawyer, however, recently got into disciplinary trouble for helping his Minnesota in-laws in a small collection matter. In a badly flawed decision
, a divided Minnesota Supreme Court decided that he had engaged in the unauthorized practice of law, and that no “safe harbor” applied to permit his activities—which consisted of sending e-mails from Colorado into Minnesota in order to negotiate the judgment.
Coming 14 years after the ABA adopted Model Rule 5.5(b)-(d)
, this opinion spotlights how turf protection by state regulators has thwarted hopes for a multi-jurisdictional outlook that would be more in line with the realities of modern-day legal practice.
The Colorado lawyer received the lowest level of discipline available in Minnesota—a private admonition—and therefore is not named in the court’s opinion.
His road to trouble in the North Star State began when his in-laws, residents of Minnesota, contacted him for help on a $2,300 judgment against them in a dispute with their condo association. From his law office in Colorado, where he has been practicing for 30 years, the lawyer exchanged about two dozen e-mails with the condo association’s Minnesota attorney over a four-month span, culminating in a settlement offer by the lawyer. Part of the lawyer’s litigation practice includes debt collection.
The state supreme court, agreeing with the hearing panel, held that “engaging in e-mail communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota.”
Astonishingly, the court majority rejected the argument that the lawyer’s efforts on behalf of his in-laws “arose out of or were reasonably related to his practice in Colorado,” even though his practice there partly involves debt collection. Minnesota’s Rule 5.5(c)(4), like its Model Rule counterpart, creates a safe harbor for temporary practice in a state where the lawyer is not licensed, if the lawyer’s activities grow out of practice in the lawyer’s home state. Not here, said the four-justice majority. In a stunning bit of reality-denial, the court held that “simply because his in-laws contacted him in Colorado or appellant has done collections work in Colorado,” that was not enough to make the lawyer’s representation of his in-laws arise out of or reasonably relate to his practice in Colorado.
Dissent: This is a “step backwards”
The three dissenting justices wrote that the e-mails and “assistance with a small judgment-collection negotiation for his parents-in-law” were reasonably related to the lawyer’s Colorado practice, and thus within the safe harbor of Rule 5.5(c)(4). They properly saw the majority’s holding as “troubling and counterproductive,” in light of Model Rule 5.5’s policy: to be a “bold step towards new latitude in multijurisdictional practice of law, which accommodates the increasingly mobile and electronic nature of modern, national legal practice.” The majority’s decision, the dissenters wrote, “represents a step backwards.”
Contrary to the principles and policy goals intended by Rule 5.5, the majority’s holding, said the dissenting justices, means that “when family members or friends—an abundant source of clients—email or call a practitioner admitted in another state, seeking assistance in areas in which the practitioner is experienced and competent, relying on a relationship of trust and confidence, they must be turned away.”
The majority opinion relies on the parochial view that the Colorado lawyer’s knowledge and experience in negotiating resolutions of collection matters stopped at the state line, and that his e-mails sent into the ether across that state line constituted unauthorized practice that the citizens of Minnesota (i.e. his in-laws) needed protection from. It’s sad that we haven’t come farther than this since 2002, and the safe-harbor provisions of Model Rule 5.5.
Content courtesy of The Law for Lawyers Today: Ethics, Professional Responsibility and More blog. Ohio State Bar Association member Karen Rubin is an attorney for Thompson Hine.
Watch an OSBA CLE on-demand seminar featuring Karen Rubin and her take on Legal Ethics and Using Social Media to Market Your Law Practice.