Representing Institutional Clients in Out-of-State Arbitrations: Navigating the Ethical Rules in Multi-State Practice
Recently, we were asked by one of our institutional clients to represent it in an arbitration in Ohio, a state in which none of our attorneys are admitted to practice. Though we were familiar with the relevant legal issues, the fact that the case was venued out of state gave us pause — after all, attorneys are generally not permitted to practice law in states which they are not admitted. However, this was an arbitration, and thus our representation did not require us to appear in the courts of Ohio. This dilemma prompted us to consider the relevant ethical implications of our representation of the client in this matter.
Our research directed us to Rule 5.5 of the New York Rules of Professional Conduct, which states: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” While this provision does not answer our question, it provides an important framework for attorneys to consider when deciding whether out-of-state practice is appropriate — that New York attorneys are permitted to practice in foreign jurisdictions, but only where allowed by local law. Accordingly, so long as the out-of-state venue permits the appearance, it will not run afoul of New York’s ethical rules.
We of course reviewed the Ohio rules to determine whether we could appear in this instance — we determined that Ohio does allow out-of-state attorneys to appear for arbitration. However, for the purpose of this note, the ABA Model Rules of Professional Conduct provide important guidance. Rule 5.5 states in relevant part that a lawyer may appear in an out-of-state jurisdiction on a temporary basis where the legal services “are in or reasonably related to a pending or potential arbitration . . . 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.” This provision generally allows for out-of-state attorneys to appear in arbitrations; however, it comes with the important caveat that the arbitration “arise out of” or is “reasonably related” to the attorney’s practice. Our research reveals that this provision is typically interpreted broadly, and that, so long as there is an ongoing attorney-client relationship in the state in which the attorney is admitted, representation in an out-of-state arbitration is permitted.
The immediate lesson is that, under certain circumstances, attorneys may appear in out-of-state jurisdictions to represent their clients in arbitrations. Big picture, however, attorneys should be ever cognizant of the unique challenges presented by their representation of institutional clients, especially as it relates to multi-jurisdictional practice. And, as always, attorneys’ ethical responsibilities should be ever present on their minds.
Christopher J. Lattuca, Esq. is an associate attorney with the law firm Vahey Getz LLP in Rochester, New York. He is an experienced litigator who prides himself on finding innovative ways to achieve early resolution for his clients. He can be reached at clattuca@vaheygetz.com.
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