June 3, 2020

Oregon Supreme Court Provides Common Sense Guidance for Lawyers Moving from One State to Another

Holland & Knight Alert
Calon N. Russell | Peter R. Jarvis

Highlights

  • Lawyers seeking reciprocal bar admission after moving from one state to another may not have to retake a bar exam but often at a minimum must go through the character and fitness process of their new jurisdictions — a process that typically winds up with a "yes" but that nevertheless can take months to complete.
  • This raises a straightforward question: What are lawyers to do during the period between the time that they leave their prior jobs in jurisdictions in which they are licensed and the time that they become licensed in the new jurisdictions to which they have moved?
  • In a case in which a lawyer who was licensed in another jurisdiction had accepted a job as a general counsel in Oregon but was charged by the Oregon State Bar with the unauthorized practice of law for the work he performed in Oregon prior to being admitted, the Oregon Supreme Court held that since the lawyer had applied for bar admission within a reasonable time after beginning work, he was entitled to claim "temporary" status and, thus, his practice of law was expressly permitted.

Lawyers, like non-lawyers, move from state to state for an unlimited number of reasons. When they do, they generally must apply for admission to practice in their new state. To ease this burden, and in recognition of the fact that attorneys are all a part of the same profession in the same country, most states now allow some form of reciprocal admission, or admission on motion, which does not require lawyers moving from state to state to retake a bar exam.

This does not mean, however, that the process as a whole is lawyer-friendly. If nothing else, lawyers seeking reciprocal admission must go through the character and fitness process of their new jurisdictions — a process that typically winds up with a "yes" but that nevertheless can take months to complete. In addition, there are some lawyers who, due to an insufficient number of years in practice or to a lack of ability to be admitted on motion, must also take and pass a bar exam in order to be admitted in their new jurisdiction. This raises a straightforward question: What are lawyers to do during the period between the time that they leave their prior jobs in jurisdictions in which they are licensed and the time that they become licensed in the new jurisdictions to which they have moved?

Rule 5.5 of the ABA Model Rules of Professional Conduct distinguishes between "temporary" practices (which generally are allowed without local admission) and "systematic and continuous" practices (which are not). The ABA has also adopted a rule that expressly covers this kind of "lawyers in transition" problem (see Model Rule on Practice Pending Admission), but only a few jurisdictions have adopted this or any equivalent rule. So what happens in a state which has no such rule?

This was the question before the Oregon Supreme Court in In re Harris, 366 Or 475, ___ P.3d ___, 2020 WL 2569834 (2020). Attorney James Harris, who was licensed in a jurisdiction other than Oregon, had accepted a job as general counsel for Portland Public Schools (PPS). Under Oregon RPC 5.5(c)(5) and ORS 9.160(1), Harris was therefore required to be licensed to practice law in Oregon (either fully or as in-house counsel) if he was going to do so other than on a temporary basis. Harris, who started work for PPS in Oregon on June 15, 2017, submitted his application for admission on Sept. 1, 2017. As Harris knew, he did not have to take the Oregon State Bar exam but merely had to pass through a character and fitness review. Harris affirmatively disclosed his lack of an Oregon license to PPS, and his position at PPS was contingent on him obtaining such a license.

Although Harris was admitted to the Oregon State Bar in June 2018, the Bar charged Harris with the unauthorized practice of law (UPL) for the work he performed in Oregon prior to being admitted. After Harris prevailed at the hearing/trial panel level on the ground that any practice in Oregon pending his expected reciprocal admission without a license was "temporary" and therefore permissible under Oregon RPC 5.5, the Bar appealed.

The Decision

The Oregon Supreme Court noted that the ABA Model Rules do not expressly define either "temporary" or "systematic and continuous," and that Oregon had neither case law nor official commentary that expressly addressed this issue. The Oregon Supreme Court also summarized the issue before it as follows:

[T]he Bar contends that only lawyers who intend to work in Oregon for a limited time can avail themselves of the exception; a lawyer who accepts a permanent job cannot be said to intend to provide legal services on a temporary basis. [Harris], on the other hand, argues that his provision of legal service without being admitted to the Oregon Bar would necessarily be temporary; if he were not admitted, he would be fired.

366 Or at 483; 2020 WL 2569834 at *5

After a close review of the language of Oregon RPC 5.5 and ABA Model Rule 5.5, the court observed that:

The Bar also posits a practical problem with reading RPC 5.5(c) to permit "practice pending admission." In its view, "the exception would swallow the rule" by allowing a lawyer to provide legal services in Oregon indefinitely, so long as the lawyer intends to apply for Bar membership at some point. We need not base our decision today on that speculative concern. "Temporary" is not synonymous with "indefinite," and this case does not require us to decide the outer boundaries of the concept of "temporary," because respondent here applied for Bar admission within a reasonable time after commencing employment with PPS. As we have stated, his practice pending admission was temporary within any definition of the word.

366 Or at 485; 2020 WL 2569834 at *6

In other words, since Harris had applied for Oregon State Bar admission within a reasonable time after beginning work at PPS, he was entitled to claim "temporary" status and, thus, his practice of law was expressly permitted under the rules.

Takeaways and Considerations

In the absence of a black letter rule that expressly covers lawyers in transition, the Oregon Supreme Court approach makes absolute sense. In addition to filing his Oregon application within a reasonable time of moving to Oregon, Harris had no reason to expect that he would encounter any problems in the course of the admissions process. Harris also took care not to hold himself out as licensed to practice law in Oregon before he was actually licensed to do so. The Oregon Supreme Court ruling is thus similar in some respects to the Ohio Supreme Court ruling in In re Application of Jones, 156 Ohio St.3d 1, 2018-Ohio-4182 (2018).

As with any case, it remains to be seen how broadly Harris will be interpreted. As the above language reflects, a non-Oregon lawyer seeking to move into Oregon plainly cannot wait too long before seeking admission. And the opinion does not expressly state whether the same result would have followed if Harris had been required to take a bar exam in Oregon rather than just going through the character and fitness process or if Harris had, perhaps, taken and failed the exam on the first try but scheduled himself to retake the exam on the next available date.

Nonetheless, the decision can and should be interpreted broadly to cover those situations where a lawyer is pending his or her admission, so long as the lawyer makes reasonable efforts to become admitted. Doing so allows clients greater access to available and qualified lawyers while allowing regulators the assurance that such practice would not be unlimited.

James Harris was represented in this case by David Elkanich and Calon Russell of Holland & Knight.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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