Many attorneys have long and successful careers without ever having to practice law outside of the jurisdiction where they obtained their license. But for litigators and in-house counsel, the need to be conversant with the rules governing multi-state practice and the process for gaining temporary permission to represent clients before an out-of-state tribunal is a fact of life. Corporations, financial institutions, and insurance companies routinely do business across state lines; in many cases, they like to take their lawyers with them if possible.

Lawyers who violate ethical guidance on multi-jurisdictional practice risk being found to have engaged in the unauthorized practice of law, an unethical (and in some cases unlawful) state of affairs that can carry harsh consequences for both the lawyer and client. One area where unwary lawyers can stumble into ethical problems is taking, or defending, or even appearing at a deposition in litigation outside the lawyer’s state of licensure.

In addition to possible sanctions for unauthorized practice of law, a lawyer’s failure to satisfy ethics obligations arising from out-of-state depositions carries the risk of having the deposition testimony disallowed by the court.

Consider the following hypothetical situation: A lawyer licensed in Illinois represents a corporate client in Illinois. The corporate client has offices in Missouri, where litigation is pending. An employee of the corporate client is scheduled to be deposed in the Missouri litigation. Rather than hire local counsel, the corporate client asks the lawyer to represent the employee at the deposition. The lawyer is not licensed in Missouri.

Can the Illinois lawyer represent the employee at the deposition in the Missouri litigation without engaging in the unauthorized practice of law? The Missouri Supreme Court’s Office of Legal Ethics Counsel recently addressed this issue in Informal Opinion 2024-04 (Jan. 23, 2024), concluding that the answer is no. In order for the lawyer to ethically represent the corporate client’s employee in Missouri, the lawyer must first obtain the Missouri court’s permission to practice in Missouri by filing a motion for pro hac vice admission.

Pro hac vice is a Latin phrase meaning “this time only.” An admission to practice pro hac vice is limited to the particular case in which the motion is filed. Pro hac vice admissions are routinely granted to litigators, although they have some drawbacks.

First, every jurisdiction has its own rules on pro hac vice admission, so those rules must be researched and complied with. These rules typically entail the payment of admission fees and proof that the attorney is in good standing in the jurisdiction where he or she is licensed. Pro hac vice admission to practice law outside the lawyer’s home state also means that the lawyer’s conduct will be subject to review by not one, but two, bar regulatory bodies.

Second, pro hac vice admissions can be quickly revoked by the court if a lawyer engages in professional misconduct. See Haysbert v. Bloomin’ Brands Inc., No. 20-0121 (Aug. 23, 2023), for an example of a trial court revoking one lawyer’s pro hac vice admission due to unprofessional conduct, repeated violations of court rules and rulings, and dilatory litigation tactics.

Third, many jurisdictions have court rules that limit the number of pro hac vice admissions a lawyer can simultaneously possess in a given time period. In some cases, a pro hac vice admission allows limited participation in the litigation and no right to file pleadings without associating with a locally admitted lawyer.

Multi-jurisdictional practice is an ethical topic that has received considerable attention in recent years, as the American Bar Association and state bar regulators across the country have worked to update ethical guidelines to account for the realities of modern law practice. Recent reforms, led by the ABA’s revisions to Model Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law, have provided new leeway for attorneys to practice law in states where they are not licensed. Model Rule 5.5 declares the general rule that lawyers may not practice where they are not licensed, then creates a number of exceptions to the general rule. The exceptions relevant to litigators are:

• temporary representation by associating with local counsel
• temporary representation by obtaining court-ordered pro hac vice admission
• temporary representation on matters reasonably related to the attorney’s existing work where he or she is licensed
• federal law practices

Every lawyer called upon to appear at a deposition in litigation filed outside his or her home jurisdiction will have to navigate Model Rule 5.5 or its local equivalent. In addition to possible sanctions for unauthorized practice of law, a lawyer’s failure to satisfy ethics obligations arising from out-of-state depositions carries the risk of having the deposition testimony disallowed by the court. Additionally, the lawyer’s ability to recover legal fees in the event of a successful litigation outcome may be hindered by a finding that the lawyer was not authorized to practice in the jurisdiction where the deposition took place.

Finally, lawyers participating in remote depositions across state lines should be aware that remote depositions carry their own unique set of ethical considerations. Yes, multi-jurisdictional practice is commonplace and welcome in modern litigation. But, as the Missouri ethics opinion highlighted, compliance with ethical obligations demands careful consideration by both the law firm and the client.