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169 N.J.L.J. 54

                                     July 1, 2002
                                             11 N.J.L. 1351
                                             July 8, 2002


Appointed by the New Jersey Supreme Court


Out-of-state Attorney Providing
Legal Services to a New Jersey Estate

The Committee on the Unauthorized Practice of Law has received an inquiry from a New Jersey attorney concerning the extent to which an out-of-state attorney not licensed in New Jersey may provide legal services to a New Jersey estate without engaging in the unauthorized practice of law.
The general principle that legal services to New Jersey residents relating to New Jersey matters may be furnished only by counsel holding a plenary license to practice in New Jersey may be abrogated only where the New Jersey courts have found that strict adherence to the requirement of New Jersey licensure would not be “in the public interest.” Opinion 14 of the Committee on the Unauthorized Practice of Law, 98 N.J.L.J. 399 (1975). Recently, the Supreme Court in In The Matter Of The Application Of Steven B. Jackman For Admission To The Bar, 165 N.J. 580 (2000), reaffirmed that principle, holding that:
[t]he care with which the exceptions have been carved out underscores the Court's commitment to the rule requiring a New Jersey plenary license in order to engage in the practice of law. Indeed, even a cursory review of the rules governing Practice and Admission to Practice should put a reasonable person on notice that a license is required unless one is acting pursuant to a carefully delineated exception. (Emphasis added.)
Id. at 586.
The Supreme Court has found that the furnishing of services to a New Jersey estate by an out-of-state attorney unlicensed in New Jersey was “in the public interest” in two instances. In Appell v.

Reiner, 43 N.J. 313 (1964), the out-of-state attorney was representing a client in a will contest venued in New York. In order to resolve the New York matter, the attorney had to negotiate extensions of credit and compromises of indebtedness in New Jersey. The Court found that “many difficulties and conflicts would have been encountered in the solution of the tangled and interwoven elements of defendants' financial dilemma” if the New Jersey matters had been under the control of a New Jersey attorney and the New York matters had been under the supervision of a New York attorney. Under the “peculiar” circumstances there present, where selection of a second attorney would have been “grossly impractical and inefficient,” the actions of the New York attorney did not constitute the unauthorized practice of law. Id. at pp. 316.
In In The Matter Of The Estate Of Waring, 47 N.J. 367 (1966), the decedent had been the widow of an individual with substantial business interests in New York. The executors of the estate retained the New York law firm that had represented the decedent herself, her husband and her family for approximately fifty years. The New York law firm retained New Jersey counsel. The Supreme Court found that the New Jersey firm and the New York firm “conscientiously sought to divide their services and responsibilities so as to avoid duplication and to ensure, without unnecessary expense, the highest measure of efficiencies in service to the estate.” The New Jersey firm handled all New Jersey aspects of the estate, including probate of the will, qualification of executors, preparation of the New Jersey inheritances tax report, the proceeding or accounting and all matters involving New Jersey law. The estate's federal tax work, a real estate matter not situated in New Jersey and “considerable administrative detail work” were the responsibility of the New York law firm. Id. at 377.

As the law in New Jersey with respect to multijurisdictional practice stands at this time, the Supreme Court's “carefully delineated exceptions” with respect to the provision of services by an out-of-state attorney to a New Jersey estate permit such services to be performed only in certain cases. Those exceptions occur where (1) New Jersey and out-of-state issues are so “tangled and interwoven” that it would be impractical and inefficient to have New Jersey counsel address them separately; or (2) there are out-of-state issues and there is a long standing and close relationship between the out-of-state law firm and the decedent's affairs, which relationship renders retention of the out-of-state firm rather than another economically efficient for the estate. In such cases, responsibility must be divided so that the New Jersey firm handles matters of New Jersey law and practice, and the out-of-state firm handles matters pertinent to its jurisdiction and business matters with which it is intimately familiar due to the long term representation of the decedent.
In either of the above instances, the out-of-state attorney See footnote 1 1 may receive fees for work appropriately performed. The mere existence, however, of federal tax issues -- common to most estates -- does not constitute license for an out-of-state attorney to provide legal services to the New Jersey estate. See footnote 2 2 In the absence of circumstances such as those outlined above, the provision of legal services to a New Jersey estate by an out-of-state attorney constitutes the unauthorized practice of law.

Footnote: 1 1 An attorney unlicensed in New Jersey but practicing within a law firm admitted in New Jersey would be precluded from undertaking responsibility beyond research and preparation of documents for review by another responsible attorney licensed in New Jersey. See In Re Jackman, supra, at 587.

Footnote: 2 2 The Supreme Court in In The Matter Of Opinion 33 Of The Committee On The Unauthorized Practice Of Law, 160 N.J. 63, 83 (1999), chose not to modify the Committee's conclusion that, even in situations where New Jersey bond counsel practice includes extensive federal tax law issues, the use of out-of-state counsel is not justified, because New Jersey lawyers must be assumed to be as skilled in federal tax practice as are out-of-state lawyers .

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