Defining the Practice of Law: North Dakota Admonishes Minnesota Attorney for UPL

Does the title “staff attorney” define the practice of law? The Supreme Court of North Dakota believes so. In a recent opinion, the Supreme Court of North Dakota admonished a Minnesota attorney for, engaging in the unauthorized practice of law, in violation of N.D.R. Prof. Conduct 5.5(d) The attorney—who is barred in Minnesota—was working for a Minneapolis based law firm that also has an office located in Bismarck, North Dakota. The attorney relocated to North Dakota to function as a lobbyist and also to assist with the drafting of real estate title opinions.

In a press release, the law firm announced that they had hired five new staff attorneys and included the attorney among the five. Additionally, the attorney identified himself as a “staff attorney” when applying for admission to the North Dakota State Bar.

Relying on the 1998 Ohio case of In re Application of Stage, 692 N.E.2d 993 (Ohio 1998), the court highlighted the requirements for avoiding confusion regarding whether an individual is a licensed attorney in a state. The court held that individuals who are not admitted to that state’s bar may not use designations such as “General Counsel,” “Managing Counsel,” or “any other term implying [that] the individual is already admitted to the practice of law” unless the individual provides a disclaimer explaining that he or she is not licensed to practice law in that jurisdiction.

The respondent argued that the North Dakota Disciplinary Board failed to show that the out-of-state attorney actually practiced law while working at the firm because his activities of working as a lobbyist and assisting licensed attorneys with researching and drafting title opinions did not constitute the practice of law. However, the court rejected this argument, concluding that regardless of whether he actually performed work as an attorney Rule 5.5(d) makes it a violation to even represent to the public that the individual is admitted to practice law in the jurisdiction. Therefore, the violation occurred as a result of the firm’s press release, and by the attorney’s designation as a “staff attorney” in the state.

Thus, an attorney needs to make sure that his or her conduct does not constitute the practice of law in a state where he is not licensed. If an attorney is working in a state where he is not licensed, best practice for the firm and the attorney is to clearly disclose that the attorney is not a licensed attorney in that state. Such disclosures will serve to avoid allegations of the unauthorized practice of law.

For the full opinion click here.

Leave a Reply

Your email address will not be published. Required fields are marked *