Sports Law

Review of Disbarring Jerry Maguire

One common trend that I find among the many sports agent related law review articles that I have read is that the topic often centers around the difference between agents that have been certified by a state bar and non-attorney-agents. Disbarring Jerry Maguire: How Broadly Defining “Unauthorized Practice of Law” Could Take the “Lawyer” out of “Lawyer-Agent” Despite the Current State of Athlete Agent Legislation (see why I abbreviated the title above?) follows suit. The law review article is located in the Marquette Sports Law Review Volume 18, Number 1, Fall 2007. I have thus far been unable to find a free link to the article; however, if you have access to LexisNexis or WestLaw, you can find it there.

Disbarring Jerry Maguire is actually the second law review article that I have read and reviewed for this site that has Jerry Maguire in the title. The other one, Maybe Jerry Maguire Should Have Stuck With Law School: How The Sports Agent Responsibility And Trust Act Implements Lawyer-Like Rules For Sports Agents, discussed the potential advantages of being an attorney-agent in lieu of the disadvantages due to being constrained by the Model Rules of Professional Conduct (MRPC). The article hypothesized that SPARTA would become a relevant piece of legislation and be enforced level the playing field between attorney-agents and non-attorney-agents. The article I just read, Disbarring Jerry Maguire, says otherwise. The author contends that SPARTA has been been unable to break the competitive disparity between attorney-agents and non-attorney agents. This is because lawyers are considered to be lawyers at all times, even when performing an activity that has no connection to being an attorney. Thus, an attorney-agent is held to a higher standard of care in a negligence lawsuit.

But the main concern of the author in Disbarring Jerry Maguire is the potential for a lawsuit against an attorney-agent based on unauthorized practice of law (UPL). The author’s (Jeremy J. Geisel) argument revolved around his contention that an attorney is considered an attorney in all aspects of life and can not wear a different hat in another type of employment. If we are to take that statement as fact, then it is true that all attorney-agents are guilty of UPL when they represent a player outside of the jurisdiction where they passed the bar. For those of you with an MRPC book in front of you, flip to Rule 5.5. For those of you not lucky enough to be absorbed in law material, here is the wording of the rule: Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

    (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

    (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

    (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

    (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

    (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

    (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

    (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

    (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

Besides d(1), which may help an attorney-agent that is with a firm/corporation and c(1), which may assist an attorney-agent working in conjunction with another attorney who is a member of that state’s bar, a(1) will be the killer. But how often is an attorney-agent bombarded with UPL claims? I cannot think of a single case offhand. Geisel warns that just because we have not seen a flood of cases does not mean that we should become complacent. He warns of the dog-eat-dog nature of the industry and how a conflict over an athlete could spur this type of litigation in the future. Negotiation, dispute resolution, and arbitration are all areas that often coincide with the practice of law, so it definitely should concern attorney-agents that what they do may not really remove that lawyer hat.
The purpose of Disbarring Jerry Maguire is not to scare you from becoming an attorney-agent. Remember all the positives mentioned in Maybe Jerry Maguire Should Have Stuck With Law School. They’re all true. Athletes feel more comfortable with an attorney-agent, and they should! Attorney-agents are better versed on contracts, collective bargaining agreements, negotiation, arbitration, etc. However, all attorney-agents should keep the idea of UPL in the back of their minds. There will always be others looking to take advantage of an opportunity for success, even if it means litigation. Take the necessary precautions, and you will be just fine as an attorney-agent.

By Darren Heitner

Darren Heitner created Sports Agent Blog as a New Year's Resolution on December 31, 2005. Originally titled, "I Want To Be A Sports Agent," the website was founded with the intention of causing Heitner to learn more about the profession that he wanted to join, meet reputable individuals in the space and force himself to stay on top of the latest news and trends.

Heitner now runs Heitner Legal, P.L.L.C., which is a law firm with many practice areas, including sports law and contract law. Heitner has represented numerous athletes and sports agents as legal counsel. He has also served as an Adjunct Professor at Indiana University Bloomington from 2011-2014, where he created and taught a course titled, Sport Agency Management, which included subjects ranging from NCAA regulations to athlete agent certification and the rules governing the profession. Heitner serves as an Adjunct Professor at the University of Florida Levin College of Law, where he teaches a Sports Law class that includes case law surrounding athlete agents and the NCAA rules.

2 replies on “Review of Disbarring Jerry Maguire”

Speaking of Leigh Steinberg, his concussion conference did nothing new. The NFL only had a forum to spew its rhetoric. How is Elliot Pelman still drawing a check. He is still the voice of medical direction for NFL research. At one point a noted head and neck dental specialist mocked their approach by comparing a recent study of mouth guards. He said, using a common boil and bite to demonstrate the relationship between mouth guards and concussion prevention is like using a model T to test indy tires. Same old story, because Pellmans crew said it, then it’s true. There is a growing undercurrent of TMJ/jaw society groups focusing on this lack of respect the NFL has fostered. Steinberg should have created a more balanced panel, the head and neck specialist from the N.E. Patriots for one should have been present to interject on these vague finding NFL research is using to minimize the mouth guard/ concussion relationship. for more on the doctor.

other lawyer-agent ethical concerns..

How about the rule against solicitation and Substantial gifts…?

It seems to be impossible to be a sports agent-attorney without breaking some rule, almost makes me not want to take the bar..

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