Important Update: Avoiding the Unauthorized Practice of Law in D.C.

By Cynthia G. Wright, Former Chair, D.C. Court of Appeals Unauthorized Practice of Law 

May 16, 2017

Some members of the legal community, especially those involved in administering bar admission requirements, are wondering why there has been a noticeable increase in the number of unauthorized practice of law (UPL) inquiries by the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law. Those who are trying to become D.C. Bar members, or who know someone who is trying to become a member, are wondering why applicants are receiving UPL inquiry letters when they are members of other bars. This article provides some background for why there has been an increase in UPL inquiry letters, and some practical tips for responding to inquiries and how to avoid UPL problems.

There are several reasons for the influx of UPL violations. First, in July of 2016, the District of Columbia became a Uniform Bar Examination (UBE) jurisdiction. The UBE is a uniformly administered, graded, and scored bar examination given in a total of 26 U.S. jurisdictions. Each jurisdiction sets its own pass score and any other additional requirements that must be met for admission. Unlike the former D.C. Bar Examination, the UBE results in a portable score for the entire examination that is transferable to other UBE jurisdictions. Rule 46—Admissions—of the D.C. Court of Appeals Rules Governing the Bar requires a score of 266 or higher on the UBE, either by taking the examination in the District or by the transfer to the District of a score of at least 266 obtained from taking the UBE in another jurisdiction. The individual must still file a complete application for admission in the District of Columbia and must pass the character and fitness investigations. An individual who wishes to transfer a score obtained in the District to New York for example, which also has a pass score of 266, would need to file an application for admission to New York, complete that jurisdiction’s character and fitness investigation, and complete any additional requirements specific to New York. The UBE makes it possible to become admitted to multiple UBE jurisdictions upon the completion of one examination.

The number of individuals who applied to take the UBE in the District of Columbia more than doubled from 341 applicants in July of 2015 to 758 applicants in July of 2016. Six individuals transferred a passing UBE score obtained from another jurisdiction to the District of Columbia. Not only has the Admissions Office received more applications for individuals taking the UBE in the District, but also, the number of individuals applying for admission via motion has remained high and even increased slightly. In the past six months, the Office has received over 1,500 applications by motion.

Additionally, the UPL Committee and the Committee on Admissions have transitioned from paper applications to electronic applications. Improved data entry and automation into a new computer system—NETFORUM—have made it easier to flag potential UPL violations. Now, it is easier for the UPL Committee to detect missed deadlines and identify individuals who have been unlawfully engaging in the practice of law in the District of Columbia. Once our UPL Committee receives notice of a UPL “flag,” members of the Committee send out an inquiry letter asking applicants to clarify their bar status and explain their situation.

While processing the bar applications, the UPL Committee has noticed that many individuals were holding themselves out as being authorized to practice law in the District of Columbia when they had not in fact been admitted to the District of Columbia Bar and did not fall under one of the thirteen enumerated exceptions as identified in District of Columbia Court of Appeals Rule 49 [hereinafter Rule 49].

Why bother with enforcing or following Rule 49? First, it is the rule of law. The rules for practicing law in the District of Columbia are prescribed by the judiciary—the D.C. Court of Appeals. The Court’s Rule 49 commentary states the purpose of the Rule:

(1) To protect members of the public from persons who are not qualified by competence or fitness to provide professional legal advice or services;

(2) To ensure that any person who purports or holds out to perform the services of a lawyer is subject to the disciplinary system of the District of Columbia Bar;

(3) To maintain the efficacy and integrity of the administration of justice and the system of regulation of practicing lawyers; and

(4) To ensure that that that system and other activities of the Bar are appropriately supported financially by those exercising the privilege of membership in the District of Columbia Bar.

If you are admitted to practice law elsewhere, and want to practice in the District of Columbia, Rule 49 is one of the most generous in the country, because it provides for thirteen exceptions to the Rule. However, do not mistakenly “hold yourself” out as authorized to practice law in the District of Columbia when in fact you are not admitted to this jurisdiction. Do not place your name on marketing materials (websites, business cards, letterhead) without completely stating where you are admitted to practice and identify what Rule 49 exception applies to your practice. Also, be wary: you may erroneously believe that you have an exclusive federal agency or court practice when oftentimes this is not the case. Frequently, an individual may be engaged in a practice that falls under a legitimate exception to Rule 49, but the practice quickly expands or changes to a local matter and you may be engaged in unauthorized practice of law. In this day of mobile devices, opponents in litigation are quick to go online and identify individuals who are not licensed in the District of Columbia and are even faster at making a UPL complaint against unlicensed lawyers.

Law firms and other employers have a duty to make sure that their employees are properly licensed. They all must be wary because they may be engaged in the aiding and abetting of the unauthorized practice of law and be in violation of Rule 5.5(b)—Unauthorized Practice—of the D.C. Rules of Professional Conduct. Firms must ensure that their new hires immediately apply for the D.C. Bar. Firms should make sure that their social media, websites, and marketing materials properly reflect the applicant’s credentials accurately—i.e.—law clerk versus associate. Also, please note if the D.C. lawyer is a partner licensed in another jurisdiction but has an office here in the District of Columbia, the individual must make the proper disclosure on his or her letterhead and other marketing materials.

The following are a few of the most common triggers, which may cause UPL inquiry letters to be sent:

1. Incorrectly categorizing yourself as an “Associate.” Some individuals mistakenly believe that as soon as they have passed the bar exam in Maryland, Virginia, Pennsylvania or another jurisdiction, they may call themselves associates while working from an office in the District of Columbia. Rule 49(c)(8) provides a temporary exception to the general prohibition on the practice of law by individuals who are not members of the D.C. Bar. It allows an individual who has been admitted to the bar of another jurisdiction to practice law in the District of Columbia if supervised by a D.C. Bar Member for up to 360 days subject to the particular requirements in that rule. CAUTION: Before calling yourself an associate, please make sure you have been admitted to the bar of a U.S. jurisdiction and make the proper disclaimers, i.e., “Not admitted to D.C. but being supervised by a licensed D.C. Bar member,” or describe the appropriate exception i.e. Rule 49(c)(2)—your work is exclusively before a particular federal agency for which D.C. Bar membership is not required. Please also consult the Committee’s recent opinion on this topic: Use of the Terms “Associate” or “Counsel” as “Holding Out” to Practice Law, Opinion 22-17 (March 2, 2017), accessible at

2. Incorrectly defining your practice of law. One note of caution when using an exception to the general prohibition on the practice of law by non-D.C. bar members (especially the federal agency exception), is that few practices are sufficiently narrow to qualify under these exceptions. In the Committee’s experience, for example, lawyers who practice exclusively before the Patent and Trademark Office or immigration agencies are most likely to qualify under this exception. Practitioners who appear before federal agencies but who also perform other functions (such as appearing in state courts or drafting contracts) must join the D.C. Bar to avoid unauthorized practice.

3. Some suggestions to avoid UPL flags:

A. File your D.C. Bar Application as soon as you arrive in the District and want to begin practicing law. If you wish to take advantage of the temporary practice exception of Rule 49 (c)(8), you have 90 days from the date that you start practicing law in the District of Columbia to submit your bar application.

B. In completing your application, distinguish accurately between the dates you were a “Law Clerk” versus an “Associate.” And note any changes in the location of your practice.

C. Failure to file and be cleared by the National Conference of Bar Examiners in a timely fashion may cause an applicant to run up against the 360-day deadline for temporary practice under Rule 49(c)(8). It takes approximately three to four months and sometimes longer for the NCBE to run character and fitness background checks. Your applications and processing will most often be delayed if you have any of the following:

1. Debt issues
2. Criminal arrests or convictions
3. Bankruptcy
4. An open case where the applicant was the defendant.
5. The NCBE was unable to reach one of your references. (Choose your references wisely).

D. Notification of Change of Address: Please make sure to notify the UPL/COA offices if you have changed your physical address. We are trying to notify and communicate with applicants via email, but sometimes this is not possible.

E. If you are physically in an office in the District of Columbia, and you are practicing law here, you must abide by D.C. Court of Appeals Rule 49. Consequently, you must file your application on time and make the proper disclosures as required by Rule 49 exception. Failure to follow this rule may result in a referral to the UPL office for an investigation. Depending on the circumstances, you and your firm may be required to enter into a formal agreement or consent agreement, and you may be required to pay back bar registration fees to the D.C. Bar. Some individuals may be required to notify their clients or former clients that they were not licensed during that time of representation.

F. If you believe that you have made a mistake or have wrongfully held yourself out as authorized to practice law in the District of Columbia, please notify us before we notify you. The UPL Committee looks favorably on those who have self-reported and who acknowledge their mistakes in complying with Rule 49.

G. If you do receive a UPL letter, please respond promptly and accurately. Be transparent as to your true status. The last thing you need is to have engaged in a misrepresentation of your situation. Our Committee will work with you. The “bottom line” is file early, be transparent as to your true status in the District of Columbia, and even if you are a partner in a law firm and have transferred to the D.C. office, you must comply with Rule 49. Failure to do so will trigger unnecessary work, stress, and other consequences.

The UPL Committee’s main goal is to get all practicing lawyers—regardless of where they are barred - to be compliant with D.C. Rule 49—to become a D.C. Bar Member, pay their dues, follow the law and ethical rules, and be great lawyers while engaged in the authorized practice of law.

Please email questions to [email protected].