Archive for July, 2012

Multijurisdictional Practice in the Health Law Practice

Tuesday, July 31st, 2012

Practicing Health Law In A State Where You Are Not Licensed 

Representing any local business, including clients in the health care industry, can lead to ethical violations when an attorney is not licensed to practice in the state.  Unless specific exceptions are met, lawyers may only practice law within the state that they are licensed.  For example, as an attorney licensed in the State of Wisconsin, I am not able to represent a client in Minnesota or Illinois without complying with the multijurisdictional practice rules.  Failure to abide with those rules can lead to the filing of ethical complaints, and in some cases even criminal prosecution for the unauthorized practice of law.

We provide specialized health law services to clients across the country.  However, my law firm has processes in place to assure that we do not run afoul of the unauthorized practice of law rules.  Generally, we make certain that there is a local counsel actively involved; whether that local counsel is an in-house lawyer or a private lawyer who is licensed in that applicable state.  We are faced with the need to comply with the multijurisdictional practice rules of various states on a continual basis.  The long and short of it is that it is never ethically permissable for a lawyer to represent a local business in another state without the active involvement of local counsel in the matter.

Because of the breadth of the health law practice, it is useful to outline the general rules regarding the practice of law in states which the health care attorney is not licensed to practice.  Following the rules in your state and the state where you are planning to provide advice will keep you off the radar of state disciplinary authorities.  It is often tempting to place your toe across the line of what is permissible, particularly in the highly specialized area of health care law.

Most and perhaps all states prohibit a lawyer from representing a client in a state in which he/she is not licensed except in a few very narrow situations.  In my state, the State of Wisconsin, these rules are outlined in SCR 20:5.5 which are complimented by state statutes that make it a crime to practice law in the state without a license.

 SCR 20:5.5 provides that a lawyer who is not licensed in Wisconsin but is licensed in another jurisdiction may provide legal services in Wisconsin but only in the following circumstances:

1.         Legal services can only be provided on an occasional basis.

 2.         The services are provided in association with a lawyer who is admitted to practice in Wisconsin.

 3.         The services are reasonably related to a pending or potential proceeding before a tribunal and the lawyer is authorized by law or ordered to participate.

 4.         The services are reasonably related to a proceeding in another jurisdiction if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction where the lawyer is admitted to practice.

 5.         The services do not involve a dispute or proceeding but are reasonably related to the lawyer’s practice in his or her jurisdiction.

 Lawyers who are not licensed to practice in Wisconsin and practice in this state under one of the above exceptions must consent to the appointment of the Clerk of the Wisconsin Supreme Court as an agent for service of process for actions arising out of the provision of services in Wisconsin.

A lawyer who is not licensed to practice in Wisconsin is not permitted to establish an office or a systematic or continuous presence in Wisconsin for the practice of law under any circumstances.  Presence can be considered to be systematic or continuous even if there is no physical presence in the state; for example if the attorney represents multiple clients in the state or regularly accepts referrals from accountants or other professionals for matters in a state where he/she is not licensed.

 A lawyer can associate with local counsel to provide services to Wisconsin clients.  In the healthcare context, a general counsel or other Wisconsin licensed attorney can retain a non-Wisconsin attorney to provide special health law expertise.  However, an attorney that is licensed in another state and not in Wisconsin cannot represent a Wisconsin client without association with local counsel.  For example, it is the unauthorized practice of law in this state to represent a Wisconsin medical practice if the lawyer is not licensed to practice in Wisconsin.  Some firms may have members who are licensed in Wisconsin and attempt to justify services in the state on that basis.  In order to permit the representation, the Wisconsin lawyer must be actively involved in the representation of the client.  It is not enough to simply have another attorney in the firm who is licensed to practice in Wisconsin.

 Similar rules apply when a Wisconsin lawyer provides services in other states.  The rules of the state in which services are very being provided must be examined by a Wisconsin attorney who is providing services in another state.  Normally, states will permit services to be performed in other states in the course of representing a client that is based in Wisconsin and the matter is a natural outgrowth of the lawyer’s representation of the Wisconsin client.  Additionally, most states permit services to be performed in association with an attorney who is licensed in the state. 

Often times, a health care attorney will be called upon to represent a hospital or health system in a state where the attorney does not have a license to practice.  This type of representation is often appropriate because the hospital will have a general counsel or outside counsel who is licensed in the applicable state who is actively involved in the matter.  Direct representation without involvement by a state licensed attorney is impermissible. 

The issue also arises in medical group representation.  There is no business that is more local in nature than a medical practice.  A medical practice is organized under state law and provides its services through physicians who are licensed to practice medicine in the state.  Yet, firms permit themselves to represent medical practices in states where they are not licensed.  The practice is unethical unless local licensed counsel is also actively involved. 

Lawyers should pay close attention to these multi-jurisdictional practice rules.  Failure to abide by these rules can result in disciplinary action and possible criminal prosecution for the unauthorized practice of law.  Additionally, clients should beware of these relationships if they are relying on the attorney/client privilege.  The laws relating to the privilege are not well developed in this context.