Unauthorized Practice of Law

 

VIRGINIA UPL OPINION 200
 


Foreign Attorney Representing Corporation at Arbitration Hearings in Virginia

Your inquiry involves an attorney who is not licensed to practice law in Virginia, but who is licensed to practice law in Maryland and is also admitted in the Federal Court for the District of Maryland, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. The attorney represents an entity which is incorporated in Michigan, with regional offices in Pennsylvania, and is registered to do business in Maryland and Virginia. The current contract calls for interpretation under the laws of Pennsylvania and contains a mandatory arbitration agreement. Typically, these particular arbitrations do not utilize the common law of any state, but are commercial cases in which the Uniform Commercial Code is applied.

Under the facts you have presented, you have asked the committee to opine as to whether the foreign attorney can represent the corporation at arbitration hearings held in Virginia.

The Committee considered your inquiry at its December 14 meeting and has directed me to transmit its conclusions to you.

The committee is of the opinion that the foreign attorney is authorized to represent his client in an arbitration proceeding in Virginia if it would be incidental to the foreign attorneyís representation of the client whom the attorney represents elsewhere as permitted by Va. S. Ct. R. pt. 6, §I (C).

The Committee is of the opinion that although a foreign attorney who represents a party in an arbitration proceeding in Virginia is not representing a party before a “tribunal”[1], such an attorney is certainly “practicing law” in Virginia. Further, a foreign attorney, i.e, a non-Virginia licensed attorney, is treated as a “non-lawyer” for purposes of the Unauthorized Practice Rules. Va. S. Ct. R., pt. 6, §I (C):

The term “non-lawyer” means any person, firm, association or corporation not duly licensed or authorized to practice law in the Commonwealth of Virginia. However, the term “non-lawyer” shall not include foreign attorneys who provide legal advice or services in Virginia to clients under the following restrictions and qualifications:

1. Such foreign attorney must be admitted to practice and in good standing in any state in the United States; and

2. The services provided must be on an occasional basis only and incidental to representation of a client whom the attorney represents elsewhere; and

3. The client must be informed that the attorney is not admitted in Virginia.

A lawyer who provides services not authorized under this rule must associate with an attorney authorized to practice in Virginia.

Nothing herein shall be deemed to overrule or contradict the requirements of Rules of this Court regarding foreign attorneys admitted to practice in the courts of the Commonwealth of Virginia including the association of counsel admitted to practice before the courts of this Commonwealth.

A lawyer who provides services as authorized under this rule, or who is admitted pro hac vice under Rule 1A:4 shall, with regard to such services or admission, be bound by the disciplinary rules set forth in the Virginia Code of Professional Responsibility.

Failure of the foreign attorney to comply with the requirements of these provisions shall render the activity by the attorney in Virginia to be the unauthorized practice of law.

The committee has previously opined that it is not the unauthorized practice of law for a non-Virginia licensed attorney to present evidence and argue matters before of law before an arbitration panel of the American Arbitration Association in Virginia in order to represent a client from the attorney’s jurisdiction in a franchise contract dispute. UPL Op. 92 (1986).

Therefore, the committee is of the opinion that the foreign attorney is authorized to represent his client in an arbitration proceeding in Virginia if it would be incidental to the foreign attorneyís representation of the client whom the attorney represents elsewhere as permitted by Va. S. Ct. R. pt. 6, § I (C).

Committee Opinion
January 22, 2001

[1]“Tribunal” is a defined term in the Unauthorized Practice Rules:

The term “tribunal” shall include, in addition to the courts and judicial officers of Virginia or of the United States of America, the State Corporation Commission of Virginia and its various divisions, the Virginia Workers’ Compensation Commission, and the Alcoholic Beverage Control Board, or any agency, authority, board, or commission when it determines the rights and obligations of parties to proceedings before it, as opposed to promulgating rules and regulations of general applicability. Such term does not include a tribunal established by virtue of the Constitution or laws of the United States, to the extent that the regulation of practice before such tribunal has been preempted by federal law, nor does it include a tribunal established under the Constitution or laws of Virginia before which the practice or appearance by a non‑lawyer on behalf of another is authorized by statute.

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