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Health Law Practice Across State Lines – Ethical Considerations For Health Lawyers

Multijurisdictional Practice in the Health Law Practice

 Health Care Law Practice EthicsTechnology has expanded the reach of lawyers and law firms.  Though the use of telecommunications, video conferencing, e-mail, “the cloud” and other technological advances, it is now possible for a lawyer sitting in California to address the needs of a client sitting in New York.  We have the resources to serve clients throughout the country, and in fact, internationally.  This is one of the forces behind much of the law firm consolidation that has taken place in recent years.  Law firms are trying to expand their physical reach to match their technological reach.  Sometimes a firm may be trying to clear its back yard and make a new competitor an ally.

Historically, State Supreme Courts have jurisdiction over the practice of law in the states.  In that regard, the practice of law has remained local.  In most circumstances, it is necessary to have a license to practice law in a specific state in order to provide legal services to clients in that state.  The Bar Associations of many states have made some adjustments to these rules over recent years in order to accommodate some of the changes in how law is practiced.  In spite of these changes, in most cases, it is still necessary to be licensed to practice law in the state in which you are providing services in order to provide legal services to clients who are based in that state.

Health care attorneys are faced with the multijurisdictional practice rules of various states on a continual basis.  Many health care attorneys have national scope practices and are consulted for their expertise in specific areas of health law.  Unlike other areas of the practice, such as real estate and trust law, many smaller towns do not have an expert on Medicare reimbursement, the intricacies of the Stark law and other state and federal health law issues that affect health care providers.  Much of that expertise is located in larger cities; sometimes in other states.

The other trend we are seeing in health care is for consultants to broaden the scope of the services that they offer into areas that traditionally require the services of attorneys and a license to practice law.  Some very aggressive health care consulting firms are even hiring individuals with legal training and who may be licensed to practice law in one or two states in order to expand the services offered by the consulting firm into areas historically requiring the services of an attorney.  The ethical implications of these relationships are highly questionable.

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.

I will put aside the issue of consultants who reach into providing legal advice as part of their service offering and focus on actively practicing lawyers who are licensed in one state and who provide services to clients who are located in another state.  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.  Presence can be considered to be systematic or continuous even if there is no physical presence in the state.

 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.

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John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

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