Rule 5.5 Unauthorized Practice and Cross-Border Legal Work

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Summary

• Rule 5.5 of the ABA Model Rules of Professional Conduct prohibits lawyers from practicing law in a jurisdiction in violation of its regulations, while allowing limited forms of temporary practice under specific conditions.
• A lawyer can practice temporarily in another state under certain circumstances, such as when the lawyer associates with an active local lawyer or obtains “pro hac vice” admission for a particular litigation.
• Involving qualified local counsel is often what keeps cross-border work on the right side of the line.

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For many lawyers, but particularly for those working across borders, the line between what they can and cannot do and what they should or should not do isn’t always clear. In fact, it is the opposite of clear. It is a blurry, dangerous gray area. The challenge is that this line is rarely evident and is often misunderstood, especially by lawyers building international or cross-border practices. Understanding where that boundary lies is not just a technical issue, but an ethical one.

Think about it this way: you can perform work in foreign jurisdictions, but at some point, without realizing it, you may cross into the unauthorized practice of law.

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The Reality of Modern Cross-Border Practice

Globalization has changed how legal services are delivered. Clients operate across jurisdictions more than ever. Most transactions now span multiple legal systems, and lawyers are increasingly expected to provide integrated advice. That makes it common for a US-licensed attorney to advise on a transaction involving Latin America, Europe, or Asia, or for a foreign-trained lawyer to support matters in the United States.

Ethical Rules That Have Not Kept Up

The problem is that professional responsibility rules have not fully caught up with modern legal work. Most jurisdictions still regulate the “practice of law” territorially. If you are not admitted in that jurisdiction, you are generally prohibited from practicing law within that jurisdiction. But what counts as “practicing law” is often defined broadly. That leaves lawyers operating in gray areas more often than they realize.

The ABA Model Rules of Professional Conduct address this directly. Rule 5.5 prohibits lawyers from practicing law in a jurisdiction in violation of its regulations, while allowing limited forms of temporary practice under specific conditions.

Importantly, Rule 8.5 provides that a lawyer may be subject to disciplinary authority in multiple jurisdictions, meaning that cross-border conduct can trigger consequences beyond the jurisdiction where it occurred.

What the Rules Actually Say

Generally, a lawyer who is licensed to practice law in one jurisdiction but not another must not open a law office in that other jurisdiction, or hold themselves out as practicing in that other jurisdiction, or establish a systematic or continuous presence in that other jurisdiction without becoming licensed.

That said, an out-of-state lawyer can practice temporarily in a state under certain circumstances, such as when the lawyer associates with an active local lawyer or obtains “pro hac vice” admission for a particular litigation.

Lawyers from outside of the United States can engage in temporary practice under similar circumstances, or if their services are governed primarily by international or foreign law.

Hidden Restrictions You Might Miss

But be careful: some states impose restrictions on out-of-state lawyers by practice area. For example, there are various registration, dues, and educational requirements for “registered in-house counsel” and “registered legal aid attorneys.” And with respect to foreign attorneys, “registered foreign legal consultants” are only allowed to provide advice regarding the law in the country in which they are licensed.

And let’s not forget that many US states have rules that dictate that a violation of professional duties in another jurisdiction can lead to disciplinary action within the state in which you are licensed, even if that conduct is not subject to disciplinary action by the state in which you are licensed.

Where the Line Starts to Blur

Consider a few common scenarios. A US attorney reviews a distribution agreement for a client expanding into Brazil and suggests revisions based on Brazilian regulatory risks. Is that business advice or legal advice? Or a foreign-trained lawyer who is working at a US firm drafts portions of a contract governed by New York law. At what point does that become independent legal advice? Is that unauthorized practice? That is important when considering ABA Rule 5.3, particularly where work is performed by individuals who are not admitted in the relevant jurisdiction.

And the cliché answer is that it depends. But there are clues you can follow to determine the answer. The more your advice is specific to a jurisdiction or directed at a client’s particular facts, and presented as a definitive legal conclusion, the more likely you are to be practicing law in that jurisdiction.

And you shouldn’t fall for the common misconception that involving local counsel is a formality. It is not. Local counsel can interpret local law (possibly) better than a foreign-trained lawyer, because they are more familiar with the practice of law in that jurisdiction and understand practices that may not be apparent from the outside.

From an ethical standpoint, involving qualified local counsel is often what keeps cross-border work on the right side of the line. Now, be careful, because simply “looping them in” is not enough. You must clearly define roles for who will provide legal advice, who will decide strategy, and so forth.

Practical Guardrails

There is no universal method to stay on the right side of the line, but there are practical guardrails.

• Be precise in how you frame your advice. Avoid presenting conclusions about foreign law unless you are qualified to do so or are relying explicitly on local counsel. ABA Rule 1.4 requires a lawyer to ensure that clients understand the scope and limitations of the representation.
• Use disclaimers thoughtfully (but not excessively). While they are not a cure-all, clear statements about the scope of your advice can help manage expectations.
• Involve local counsel early, not after the fact. Bringing them in at the end to “validate” a structure is riskier than integrating them into the analysis from the beginning.
• Understand the rules that apply to you. US jurisdictions, for example, allow certain forms of temporary or incidental practice, but those exceptions are limited.
• When in doubt, pause. The pressure to provide immediate answers should not override ethical boundaries. One of the most underrated professional skills in cross-border practice is knowing when to stop talking. I can appreciate how clients value responsiveness, but they also rely on lawyers to recognize the limits of their authority. Saying “this requires input from local counsel” is not a sign of weakness, but of professionalism.

Knowing When to Step Back

As legal practice becomes more global, the temptation to operate seamlessly across jurisdictions will only increase. Technology and remote work continue to push in that direction. But ethics rules remain grounded in licensure, competence, and accountability. Don’t neglect to follow those in your eagerness to practice cross-border law.

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Endnotes

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Author

Tomas Ballarati

I am a licensed attorney in Argentina who recently passed the California Bar Exam in the United States after graduating from an LL.M. program at George Mason University, in the U.S. For the past four years I have been...

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Author

Tomas Ballarati

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