The Rules of Professional Conduct apply to the conduct of lawyers and the governing bodies who enforce those rules maintain jurisdiction over the lawyers they serve. Conversely, when a non-lawyer acts in a way that violates the legal ethics rules, although that person might be guilty of a criminal or civil law violation they will not face a penalty from state bar associations, having no jurisdiction over them and further, the courts cannot rule against them on ethical grounds.
Rules regarding the Unauthorized Practice of Law or UPL generally apply to lawyers practicing outside of their licensed jurisdictions and non-lawyers doing the work of lawyers. One can safely analyze and determine that lawyers hiring freelance or associate (style) lawyers on a project basis will not trigger unauthorized practice of law issues.
But focusing more on the rules which impact lawyers, ABA Model Rule 5.5, and its parallel state rules focus on lawyers practicing law outside of their own jurisdictions. These rules are designed to support the state bars’ interest in competence and its impact on clients. To avoid unnecessary regulation of this issue some states allow reciprocity in certain circumstances. Oregon, Idaho, Utah, Washington, and Wyoming offer reciprocity of varying degrees. Other states, like Michigan, allow occasional incidental practice by outside lawyers.
In addition to creating carve-outs, the ethics rules often rely on Rule 1.1 (competence) instead of, or in addition to, Rule 5.5. Under Rule 1.1, transactional lawyers must familiarize themselves with local rules or consult with local attorneys if they are unfamiliar with the law in a jurisdiction their practice takes them. Lawyers arguably have a duty to oversee the work of their associates to make sure they are both complying with these rules. This duty will apply to an associate working with a lawyer whether that associate has been employed full-time or on a project basis. Enhanced review or increased supervision would probably be required when that project-based lawyer is licensed in another jurisdiction. A good understanding how Rules 5.5 and 1.1 work together may guide law firms in their use of project-based lawyers to provide competent, ethical legal representation in the case of associates licensed in outside jurisdictions.
UPL issues rarely prevent lawyers from using project-based lawyers. The project-based lawyer is doing work directly for the hiring attorney. The hiring attorney presumably supervises and reviews the work before delivering her (the hiring attorney’s) work product to the client or effectuating representation in litigation. The project-based attorney is working for the hiring attorney; the project-based lawyer is not representing the client in the matter.
The Tennessee state bar sets an excellent example for law firms to follow. In Tennessee, lawyers are required to tell their clients when out-of-state project-based lawyers are doing work for their office. Law firms should consider taking these steps even if their state does not require such notification. Helping clients understand the role of project-based lawyers will build trust while helping to establish that project-based lawyers are working for the firm instead of for the client.