Saturday, 4 May 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part III

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.   The first one is available at this link and the second at this link.  Here is the third one:


"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

Know the Rules - "The Immaculate Misconception" (UPL)

One of the most dramatic moments in football is when a wide receiver leaps for a long pass in the end zone. His arms outstretched, while attempting to drag his feet to stay in bounds, he maintains control long enough to complete a touchdown. Similarly, a sports attorney may find him/herself having to stretch to their capacity for the benefit of the client, while staying within the limits of the law (ethical or otherwise).

The determination of what is and isn't the practice of law is not subjectively determined by the attorney, but rather by the jurisdiction to which activity transpires. In our sample scenario, Mega Star asks Attorney Al to negotiate possible contracts with the California and Texas teams. Such negotiations may well require Al (and certainly Mega, if he signs) to travel to those states and could, for that matter, lead to contracts governed in whole or in part by the law of those states.

Suppose, then, that Al negotiates and Mega signs a contract with either the California or Texas team, and suppose further that all reasonable minds would agree that the choice of ethics law rules would require the application of California or Texas law. Does that mean that Al would be guilty of the Unauthorized Practice of Law in either of those states? Not necessarily.

In either jurisdiction, the negotiation of a contract for a third party would likely be considered a part of the practice of law. In other words, the practice of law is not limited to litigation. At risk of some potential oversimplification, it also includes advising others for a fee about their contract rights in negotiations. Almost all states now recognize at least some degree of "temporary" in-state lawyering which does not violate the state's Unauthorized Practice rules. In California, for example, Al might have a solid argument that since his client, Mega, was a New York resident at the time and since he was only occasionally in California for purposes of those negotiations, he should not be subject to the California RPCs. See, e.g, Estate of Condon (1998) 65 Cal. App. 4th 1138, 76 Cal. Rptr. 2d 922. See also, 2013 California Rules of Court, Rule 9.48.

In Texas, the result may be less clear, but one can at least hope that the same result should follow. Cf. Texas RPC 5.05. To the extent that Al has doubts under either state, he certainly could cut his risk by associating a lawyer licensed in the state in question.

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