A lawyer is licensed by one state. Her clients are not. She answers their emails from an airplane, edits a contract on vacation, takes a deposition in Chicago, and works two nights a week from her kitchen table in New Jersey. Is any of that the unauthorized practice of law? The honest answer, as Sarah McShea explains, is "a hesitant yes" — and the rules were changing while she said it.
In this TalksOnLaw interview, Joel Cohen sits down with McShea, a New York ethics lawyer and former disciplinary prosecutor, to map the murky terrain of multijurisdictional practice: what counts as practicing law, where a license stops, and how a careful lawyer stays inside the lines.
What Practicing Law Means
McShea begins with the license itself: the right to hold oneself out as a lawyer — no "Esq." until you are admitted — to appear in court, to give legal advice, and to form attorney-client relationships that carry the privilege and the protections of the professional rules. Transactional lawyers, she insists, are practicing law as surely as litigators; clients pay for the advice and the relationship, not the courtroom. The boundary is famously indefinable — tax advice from an accountant is accounting, the same words from a lawyer are law — and for non-lawyers, crossing it is a crime in most states, with fee forfeiture and injunctions to follow.
The Home Office in New Jersey
The license is statewide, so the New York lawyer who commutes from New Jersey is fine at her Manhattan desk and, technically, practicing without a license when she takes a client call at home. McShea explains how the profession has managed this: conventions that tolerate the vacation email and the evening at the dining table, and the newer "temporary practice" rules in most states that let an out-of-state lawyer come in for one matter, one client, without setting up shop. She is candid that these are conventions with edges, and that states change their minds.
Birbrower and the Sea Change
The cautionary tale is Birbrower, the California case in which New York lawyers who handled an arbitration in California lost their entire fee to a client who invoked the unauthorized-practice statute. The decision alarmed firms nationwide and, McShea says, started a sea change: California adopted a pro hac vice rule for arbitrations and later a temporary-practice rule, and the ABA's Model Rule 5.5 spread the safe harbors that transactional and litigation lawyers now rely on. She walks through pro hac vice admission — the fee, local counsel, submission to local rules — and the harder case of pre-suit investigation in a state with no court yet to ask, where she describes local counsel as required (under Model Rule 5.5(c) and New York's Part 523, associating local counsel is one of several safe harbors, not a requirement).
Nebraska Clients and Foreign Lawyers
Cohen tests the rules with a Nebraska client: advising on Nebraska law from a New York office is fine, subject only to competence; flying to Omaha to meet the client is covered by temporary practice; agreeing to be there a week a month is not, because presence is what the rules police. McShea then turns to foreign lawyers advising on their home law in New York — the German lawyer counseling a New York client on a Munich purchase — and New York's foreign legal consultant license, which permits exactly that under New York's disciplinary supervision. She covers relocation (the District of Columbia's grace period, New York's lack of one, the firm-website asterisks that say "not admitted in New York," and the senior partner who must be nominally supervised by a junior New York lawyer) and in-house counsel, whose habit of moving between states without local admission created havoc until registration rules like New York's arrived. A wrong guess about temporary practice, she notes, is more a licensing than a criminal risk — and, per Gucci v. Guess, the client's privilege survives if the client reasonably believed the lawyer was authorized.
What to Know Now
The rules have moved decisively toward the common-sense conventions McShea describes, driven by a pandemic that sent every lawyer home. In December 2020 the ABA issued Formal Opinion 495, concluding that a lawyer working remotely from a state where she is not admitted does not engage in unauthorized practice so long as she does not hold herself out as admitted there, advertise a local office, or practice that state's law. New York's own temporary-practice rule, 22 NYCRR Part 523, had taken effect just as this conversation was recorded, bringing the state into line with the rest of the country, and in 2022 New York added § 523.5, expressly permitting lawyers admitted elsewhere to practice their home jurisdiction's law from a New York residence — the mirror image of the New Jersey kitchen table. Florida, Arizona, and other states adopted similar positions, and the ABA in 2023 proposed a broader rewrite of Model Rule 5.5 that would let a lawyer admitted anywhere practice everywhere with disclosure; it did not advance, and multijurisdictional practice remains a patchwork of state rules. The choice-of-law question that the patchwork raises — which state's ethics rules govern a lawyer's conduct — was addressed in ABA Formal Opinion 504 (2023), applying the rules of the tribunal for litigation and otherwise of the jurisdiction where the conduct or its predominant effect occurs. The remaining friction McShea would recognize is in admission itself: New York's "five of seven years" rule for admission on motion still counts only physical practice in the state of admission, so lawyers who practiced remotely must seek a waiver from the Court of Appeals. New York's in-house registration rule (Part 522) and foreign legal consultant rule (Part 521) remain in force, and Birbrower remains the case every temporary-practice rule was written to prevent.
