part time consultant - ethics question

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seasidemama

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part time consultant - ethics question

Postby seasidemama » Sat Feb 03, 2018 1:34 pm

Been trying to research this but as with many ethics questions no definitive answers. Thought maybe someone here would have some knowledge .

Being considered for part time remote contracts review job.
Company is located in NY where I live but am not yet licensed (just submitted my application to C&F). I will l be doing the remote work from this state.
I am licensed in a neighboring state if that is significant.

Contracts are with vendors all over US. Contract language usually states applicable laws will be of vendor jurisdiction. Not NY. Arbitration clauses.
My job will be to second round review and comment on these contracts.

I know there are many non-legal job titles of contracts specialist or contracts administrator whose role descriptions overlap what I will be doing.

Long story short - will I be engaging in unauthorized practice of law if take this review job?

CanadianWolf

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Re: part time consultant - ethics question

Postby CanadianWolf » Sat Feb 03, 2018 3:31 pm

Probably. I recently spent over a year doing work for attorneys in other states facing different, but similar enough, issues.

Basic problems include: Use of words like "attorney", "lawyer", "JD", etc. when not a member of bar where situated whether working for clients based in your current state or not.

Other issues to research: Fee splitting & assisting other with UPL & trust account issues.

Nothing here is intended to be legal advice. In a hypothetical situation, these are the issues that I would raise on a law school exam.

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Re: part time consultant - ethics question

Postby CanadianWolf » Sat Feb 03, 2018 3:38 pm

In answer to your question: If this situation were on a law school exam, the answer would be "yes".

P.S. This is a very easy "yes".

As an example, and they do vary by state jurisdiction, a Colorado licensed attorney was disciplined by the Colorado Supreme Court for giving legal advice on a very simple consumer matter (if I recall correctly) over the telephone to his out-of-state in-laws.

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Re: part time consultant - ethics question

Postby CanadianWolf » Sat Feb 03, 2018 3:45 pm

Again, if this was a question on a law school examination, I would answer this hypothetical scenario as follows: The correct way to protect yourself in this situation is to contact the New York State Bar as well as any state bar in which you are licensed & in each state where clients are based, or do business, or are contractually bound to a particular jurisdiction in the case of any dispute.

seasidemama

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Re: part time consultant - ethics question

Postby seasidemama » Sat Feb 03, 2018 6:43 pm

CanadianWolf wrote:Again, if this was a question on a law school examination, I would answer this hypothetical scenario as follows: The correct way to protect yourself in this situation is to contact the New York State Bar as well as any state bar in which you are licensed & in each state where clients are based, or do business, or are contractually bound to a particular jurisdiction in the case of any dispute.


Thanks for replying. NY ethics hotline is only for NY barred attorneys. I could contact the jurisdiction where I am licensed - not sure how applicable their answer would be as it seems none of the vendors are based there. From a quick review of their vendor agreements and future engagements, I would have to contact 12+ jurisdictions... In either case - the websites for the ethics hotline state they can only give a general non-binding opinion that cannot be used in any possible disciplinary hearings.

I love the idea of doing remote contract review but worried about the ethics issue.

I guess my question is if the company is aware of my license status and if they hire me as a part time "contract consultant" is the role performed often enough by non lawyers and therefore not an issue or should I just forego the opportunity...

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Re: part time consultant - ethics question

Postby CanadianWolf » Sat Feb 03, 2018 11:43 pm

Nothing happens unless & until someone files a complaint with a state bar. Just because hundreds or thousands of others are practicing law in states where they are not a member of the bar, doesn't make it legal or excusable.

Often UPL claims arise in immigration matters & in debt matters as well in probate/estate planning.

Some states handle UPL as a civil offense & others as a criminal offense. When doing research on UPL, you will be surprised at the difference in possible penalties (for example, South Carolina regards UPL as a felony punishable by up to 5 years in prison).

You can get in trouble with your own bar membership even though in a completely unrelated state jurisdiction for aiding others in the unauthorized practice of law, engaging in UPL, and violating trust fund rules in each jurisdiction.

In my opinion, it is not worth the risk.

Nevertheless, the issues remain as to "what constitutes the practice of law" & "are state bars violating antitrust laws".

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Re: part time consultant - ethics question

Postby Anonymous User » Mon Feb 05, 2018 1:55 am

I think other folks are being too "letter of the law" here. In many states, contract managers are often not even lawyers. In many states, paralegals would do this type of review for contract managers to check afterward. I would not worry too much about this unless you feel as though you're really going to be practicing "all over the place." It is likely the company you are working for has one or two offices, and it'd be helpful for you to be licensed in at least one of those states. Do some research re in-house counsel and practicing across state lines. Feel free to call yourself a consultant or contract manager, not an attorney. You should be joining a wide swath of contract managers who (don't) practice this way. It is very common. If you're comfortable, take the job. Remember, it's your law license on the line though--the company is not looking out for you. You need to look out for you.

seasidemama

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Re: part time consultant - ethics question

Postby seasidemama » Mon Feb 05, 2018 6:19 pm

Anonymous User wrote:I think other folks are being too "letter of the law" here. In many states, contract managers are often not even lawyers. In many states, paralegals would do this type of review for contract managers to check afterward. I would not worry too much about this unless you feel as though you're really going to be practicing "all over the place." It is likely the company you are working for has one or two offices, and it'd be helpful for you to be licensed in at least one of those states. Do some research re in-house counsel and practicing across state lines. Feel free to call yourself a consultant or contract manager, not an attorney. You should be joining a wide swath of contract managers who (don't) practice this way. It is very common. If you're comfortable, take the job. Remember, it's your law license on the line though--the company is not looking out for you. You need to look out for you.


Thanks for the insights. This is mostly what I was thinking. The company only has offices in one state BUT vendors are all over and contract terms link to law of vendor jurisdiction... If this pans out I am planning on specifically indicating that I will be consulting on the business end and that the company should seek a final legal review from an attorney licensed in the jurisdiction where the laws will be applied. In-house rules cannot apply here because this is a part time remote role and in NY in-house exceptions only apply to full time employees...

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Re: part time consultant - ethics question

Postby CanadianWolf » Tue Feb 06, 2018 2:43 pm

Yes, I am being too letter of the law here because I just came off a multi-year matter involving the issues about which I have written.

In the past, state bars targeted Big 6 (now Big Four) accounting firms. Texas lost because Arthur Anderson just outspent & outgunned them. The issues still remain.

There are strict states & there are lax states regarding UPL.

I did research for one lawyer client--he came out unscathed.

I advised a senior partner & his associates at a branch of a major national law firm that they were handling the matter incorrectly. They mocked my analysis & approach, charged their client over $200,000 & got the client business shut down.

Initially another firm & some attorneys hired a partner who literally wrote the book on ethics in that state (I believe that this was a prominent regional law firm) that was pursuing them. I suggested that they were approaching the matter from an incorrect perspective. Again, this attorney & his associates (including a former law review editor-in-chief at a top tier law school) were eventually fired. Their clients were disciplined. But the lawyer & law firm were very adept at billing their clients.

I guess that you can take the approach that it is not a problem until you are cught or, at least, until someone files a complaint with a state bar ethics committee.

I do not know your business, but am familiar with several types of national widespread practices which have suffered consequences due to UPL.



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