Comment: The Attorney's Dilemma - Practice of Law in a Foreign State
Comment: The Att orney 's Dilemma - Practice of Law in a Foreign State
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than the courts to solve their property,
support and custody problems. If this is so,
the separation agreement seems to be a
functionally adequate vehicle which will
satisfy the needs of the involved parties,
the courts and society at large.
COMMENT: The Attorney's Dilemma
of Law in a Foreign State
The exigencies of today's advanced
society with its highly complex
industrialization, transportation and communication
have initiated a liberalization of the
historically strict application of the concepts of
state boundaries and individual state
sovereignty. Our way of life is dependent
upon the constant involvement and
interaction among the states themselves and
among individuals of each state. The
members of the legal profession have, for
the most part, been able to keep pace with
this trend and have helped to eliminate
many of the difficulties that would have
arisen had each state refused to recognize
the practical advantages of interstate
In marked contrast is the practice of
law itself. Under "illegal practice of law"
statutes,' the states have prohibited
out-ofstate attorneys from practicing law within
their jurisdictions. In this area, the concept
of each state being a closed, separate and
distinct unit has remained almost
completely intact. An attorney must tred warily,
limiting his legal activity when venturing
out of the state -in which he has been
admitted. The purpose of this note is to
consider the justification and soundness of
this situation in light of present legal
1See, e.g., N.Y. PEN. LAW §§ 270, 271; CAL.
Bus. CODE ANN. § 6125; WASH. REV. CODE §
thinking and developments.
The Present Situation
The common law, with its technical
and intricate legal system, soon recognized
that the layman was ill-equipped to handle
legal problems.2 To prevent the layman
from so acting and to protect the public in
general, individuals were required to obtain
a royal writ before engaging in the practice
of law.3 This requirement has evolved into
present day restrictions whereby virtually
every state confines the practice of law
within its borders to those individuals it
has qualified as attorneys-at-law. These
restrictions are enforced in the majority
of states by statutes which make it illegal
for a person not certified or admitted to
the bar to so practice. 4
While the term "practice of law" has
not been precisely defined it certainly
includes out-of-court as well as courtroom
activity.' For example, this term has been
construed to encompass: (1) a single act
or transaction;' (2) holding oneself out
as a licensed attorney; 7 and (3) a
con2 1 POLLOCK & MAITLAND, THE HISTORY OF
ENGLISH LAW 211 (2d ed. 1899).
3 PLUCKNETT, A CONCISE HISTORY OF THE
COMMON LAW 217-18 (5th ed. 1956).
4 See statutes cited note 1 supra.
5 Eley v. Miller, 7 Ind. App. 529,-, 34 N.E.
836, 837-38 (1893).
"In re Baker, 8 N.J. 321,-, 85 A.2d 505, 513-14
7 Brooks v. Volunteer Harbor No. 4, 233 Mass.
168,-, 1,23 N.E. 511, 512 (1919).
tinuous course of action.8
Once a certified attorney leaves his
"home" state he loses his professional
identity and is considered a layman in the
foreign state. 9 If he were found practicing
law in such foreign jurisdiction, in
addition to losing his fee he could be held in
criminal contempt, 10 fined," enjoined from
similar action in the future 1 2 and possibly
disbarred in his "home" state."3
There is, however, an exception to the
above general rule. Most states will allow
an out-of-state attorney to appear in its
courtrooms pro hac vice-with the
permission of the court.1 4 This exception is
limited to actual courtroom litigation and,
in many instances the out-of-state attorney
must associate himself with an attorney
who is a member of the local bar."
The interpretations given to "illegal
practice" statutes are by no means uniform.
Some states are less strict than others in
subjecting the out-of-state attorney to
the prohibitions of their statutes. For
example, Wyoming, taking the most
restrictive position, ascribes the following
as its reason for forbidding in-state
practice by out-of-state attorneys:
[E]ven if we could properly draw a
dividing line between those who have been
admitted to practice somewhere and those
who have not, it would still be inadvisable
and contrary to the public interests to have
in the state a body of men, engaged in the
practice of law, who are not amenable to
the same disciplinary measures as men
who have been regularly admitted. 16
Other states construe their "illegal
practice" statutes as directed at those who
falsely represent either that they are
attorneys or that they are certified to practice
law within the state. 7 Hence, in such
jurisdictions an out-of-state attorney could
render legal services for a client and not
be in violation of the law so long as he
informed the client that he was not
certified in that state.
'5 Bradley v. Sudler, 172 Kan. 367, 239 P.2d
921 (1952); In re New Jersey Refrigerating Co.,
97 N.J. Eq. 431, 126 At. 174 (1924).
16 Harriman v. Strahan, 47 Wyo. 208, -, 33 P.2d
1067, 1069 (1934).
17 Brooks v. Volunteer Harbor No. 4, supra
note 7. Massachusetts formerly took a stricter
position on the legal activities of out-of-state
attorneys. See Browne v. Phelps, supra note 14.
Strict limitations on out-of-state practice
are incongruous with modern
developments, legal and otherwise. Today, in order
to best serve a client, the attorney may
have to engage in some practice of law
outside his "home" state. This is true in
several areas of legal practice, but none
so evident as when the attorney deals with
clients in the present commercial setting.
In this setting, while business crosses
state lines readily, the attorney
representing such business interest cannot. Such was
the case in Taft v. Amsel,15 wherein the
plaintiff, a New York attorney, was
engaged by defendants, Connecticut
residents, to advise them in setting up a
nationwide trucking concern. The services
were rendered primarily in Connecticut.
The court denied the attorney's claim for
legal fees stating that its "illegal practice"
statute forbade the practice of law, in or
out of court, by persons not admitted as
attorneys in its state. 1
Because of its harsh effects, this view
has been rejected under certain
circumstances. Thus, in Appell v. Reiner,20
wherein a New Jersey businessman retained a
New York lawyer to obtain extensions of
credit and compromises from creditors
both in New Jersey and New York, the
court allowed recovery of legal fees. While
there was no doubt that the New York
attorney was practicing law in New Jersey
without its certification and that ordinarily
such practice would bar a recovery, the
court noted that there were unusual
situations in which strict application of the
13 23 Conn. Supp. 225, 180 A.2d 756 (Super. Ct.
1)id. at -, 180 A.2d at 757.
20 43 N.J. 313, 204 A.2d 146 (1964).
statute would not be in the public interest.21
The court reasoned that the client's
obligations were so interwoven and entwined
between the two states as to be inseparable.
Confusion, impracticality and a waste of
the client's money would have resulted if
two attorneys-one from each state-were
required. The court concluded that
"recognition must be given to the numerous
multi-state transactions arising in modern
times," noting that this was particularly
true of New Jersey, "situated as it is in the
midst of the financial and manufacturing
center of the nation. ''2 2 Although the court
allowed recovery upon the specific facts
of Appell, its opinion was narrow and
evidenced its reluctance to deviate from the
traditional concepts of "illegal practice."
Other modern commercial developments
make a liberal approach desirable. Uniform
laws, for example, were born out of a
desire for fluidity in commerce between
the states. This movement toward
uniformity has fostered a need for a legal
practice that is, at the very least, greater than
Further justification for a lenient
approach lies in the growing prominence of
the specialist in all areas of the legal
profession. Should not a client be allowed to
retain the best attorney in a particular field
of law even though the attorney comes
from outside the state? This problem was
treated in the recent case of Spivak v.
Sachs, 23 wherein a New York court awarded
21 Appell v. Reiner, 43 N.J. 313, -, 204 A.2d
146, 148 (1964).
23 21 App. Div. 2d 348, 250 N.Y.S.2d 666 (1st
Dep't 1964). At the time of this writing the case
is before the court of appeals for final
determination. Prior to this case New York had held
that an attorney could not recover for services
if not admitted to practice law in the state. Fein
v. Ellenbogen, 84 N.Y.S.2d 787 (Sup. Ct. 1948).
a judgment to a California attorney for
services rendered in a New York
matrimonial action. The attorney informed his
client that his services would be limited
because he was not admitted to practice
in New York. The attorney remained in
New York for two weeks, advising and
consulting with the defendant and her New
York attorney. The court considered the
services rendered, taken as a whole, to be
a single act and not a continuous course
of conduct or an attempt to mislead the
client in violation of the state's "illegal
practice" statute. The court remarked:
"With business activities crossing state lines
and with communication and travel
facilitated it is usual for lawyers to accompany
their clients for purposes of consultation
and advice. '' 24 However, the court
qualified this stand and stressed that
out-ofstate attorneys should not feel free to
engage in legal activities in the state. "It is
true that in any such situation where the
acts tend to become regular, a question
of degree can arise as to whether this
constitutes practice,"2'5 and hence found
to be illegal under the statute.
In two other areas, the barriers erected
by the states toward the practice of law by
an out-of-state attorney have been hurdled
to some extent with the help of the federal
constitution. In the first area, that of
criminal law, it is well settled that the sixth
amendment, providing for the right to
counsel in criminal cases, applies to the
states by virtue of the due process clause
of the fourteenth amendment. 21 It is also
24 Supra note 8, at 350, 250 N.Y.S.2d at 668.
26 Powell v. Alabama, 287 U.S. 45 (1932);
Gideon v. Wainwright, 372 U.S. 335 (1963).
well settled that due process includes the
right to counsel of defendant's own
choosing.27 In United States v. Bergamo,2s a
federal criminal prosecution, "right to
counsel" was interpreted to mean the right
to employ any counsel, from any state,
regardless of whether the attorney was
admitted to practice before the federal
courts of the state in which the
prosecution was being conducted. When this
question arose, a federal court avoided
applying the Bergamo rule to state criminal
prosecutions. 29 However, since there is a
constitutional right to counsel of one's
own choice, ° it should follow that a state's
"illegal practice" statute, which attempts
to restrict that choice, would be
unconstitutional. Should this position be adopted
by the Supreme Court, the criminal
attorney, once chosen by a client, would have
to be permitted to practice without any
limitations in any state.
The second area, where state limitations
on legal practice have been reduced, is
the practice of patent law. In the case of
Sperry v. Florida,31 which involved the
practice of patent law by a layman
authorized to practice before the United States
Patent Office, the Florida Supreme Court
had held that the layman's conduct
constituted the unauthorized practice of law
which the state could prohibit.32
The United States Supreme Court
vacated this prohibition, holding that while
27 Glasser v. United States, 315 U.S. 60, 70
28 154 F.2d 31 (3d Cir. .1946).
29 Cooper v. Hutchinson, 184 F.2d 119 (3d Cir.
30 Supra notes 26 and 27.
31 373 U.S. 379 (1963).
32 One does not have to be an attorney to
practice before the United States Patent Office. 35
U.S.C. § 1.31 (1958).
under Florida statutes the layman,
preparing and prosecuting patent applications,
was engaged in the practice of law illegally,
the state law, under the Constitution, must
yield before federal legislation which
permits such conduct. Regardless of the fact
that a state would treat an out-of-state
attorney as a layman, such an attorney, if
certified to practice before a court of a
special branch of the federal government,
e.g., the tax court or customs court, would
not be bound by the "illegal practice"
statute of the state.
Change is necessary in the laws that
treat the out-of-state attorney as a layman
and severely restrict his practice of law to
his "home" state. Modern developments
have made strict application of "illegal
practice" statutes anachronistic.
For example, at one time there was great
apprehension that an out-of-state attorney
would have inferior legal knowledge as
compared to his counter-part certified
within the state. The standards among the states
for admission to the bar varied greatly.
While this remains partly true today, the
general trend toward uniformity is
evident. A factor mitigating the remaining
inconsistency of standards is the change in
legal education. Attendance at a law school
is now the dominant form of legal
education prerequisite to admission to the bar,
and most law schools are either nationally
accredited or accredited on a state-by-state
basis. Attending a law school outside of
one's "home" state is commonplace. In line
with this, most law schools today
deemphasize local law and stress the
underlying theories of common law or civil law.
Thus, the lack of an adequate legal
background is perhaps no longer a logical
reason for treating the out-of-state attorney as
a layman under "illegal practice" statutes.
Another factor, which has lost much of
its vigor, is the historic inability of a state
to exercise control over foreign attorneys.
Today, the ability of a state to exercise
personal jurisdiction over non-residents is well
established. 33 At the present time many
states already possess a statutory scheme
which would make an out-of-state attorney
amenable to suit-e.g.,
malpractice-within the state in which the legal activity in
question was performed. 4 Those states
that do not have such a statute could pass
one that would make the non-resident
attorney subject to the personal jurisdiction
of the state. In addition, relatively simple
legislation could require the attorney to
conform to the standards of ethics set up
for those attorneys who are licensed and
practicing within the state. If the public
can receive adequate protection against
outof-state attorneys, as it now does against
local attorneys, the justification for
classifying them as laymen, prohibited from
practicing law, is indeed weakened.
Perhaps the only remaining justification
for not allowing a less restricted interstate
legal practice is that the law in each state
differs in both its substantive and
procedural aspects. While there is much validity
in this position, a client should be allowed
to assume the risk that his attorney will
not be able to adequately perform his
services by reason of these differences.
The regulation of the practice of law is
absolutely necessary. This can best be
ac(Continued on page 165)
33 See, e.g., Hess v. Pawloski, 274 U.S. 352
(1927); International Shoe Co. v. Washington,
326 U.S. 310 (1945); McGee v. International
Life Ins. Co., 355 U.S. 220 (1957).
31 See, e.g., CPLR 302(a).
cipal case, for example, the child was
boarding at a private university. The Court
did not directly discuss this problem, but
by its order suggested an apparent
solution. The father was not ordered to pay the
entire cost of college for his son, but
instead was ordered to pay part of the cost.
The amount of the father's required
payments was based more on his ability to pay
than on the cost of the education selected
by the child. Such a solution, which bases
the amount of support for college on the
father's income, might be more practical
than attempting to lay down any definite
rules as to the type of college education to
be provided and appears to coincide with
the "station in life" doctrine of support.2 5
The Weingast decision has raised many
questions and has left the law of New York
on this subject unsettled. However, the rule
adopted by the Family Court manifests the
trend which, similar to that in other
jurisdictions, indicates a more liberal view with
respect to the necessity of a college
education in today's highly complex and
25 39 AM. JUR. Parent & Child § 48 (1942).
NOTES AND COMMENTS
complished by the particular state wherein
this practice occurs. However, the
demands and needs of a modern society call
for a change in the present thinking on the
part of the states. To treat an attorney,
admitted to the bar of another state, as a