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VIRGINIA
UPL OPINION 201
Activities
of Attorneys Not Licensed to Practice Law in
Virginia and Working in the Virginia Office of a
Multijurisdictional
Law Firm.
Your
inquiry concerns a multi-jurisdictional law firm
and whether attorneys practicing in the firm’s
Virginia office, who are not licensed to practice
law in Virginia, are permitted to perform certain
activities.
You
have asked the committee to opine as to whether
it would be the unauthorized practice of law in
Virginia for those non-Virginia attorneys to:
1.
Engage in the practice of law when the matter
concerns the law of the jurisdiction where the
attorney is licensed to practice.
2.
Provide legal representation in matters involving
federal law.
3.
Meet with and advise clients, who are not Virginia
residents, in matters which do not concern Virginia
law.
4.
Provide legal services concerning Virginia law when
in association or supervised by a Virginia-licensed
attorney.
The
Committee considered your inquiry at its December
14 meeting and has directed me to transmit its conclusions
to you.
In
regard to your first inquiry, the committee has
recently opined that a foreign attorney (i.e., a
licensed attorney not admitted in Virginia) may
advise a client in Virginia on matters involving
the law of the jurisdiction in which the foreign
attorney is admitted to practice. UPL Op. 195 (2000).
Prior opinions concluding that such activity is
unauthorized practice have been overruled. However, any
law firm stationery or other public communications
identifying the lawyer with the Virginia office
must indicate that the lawyer is either not admitted
in Virginia or that the lawyer is admitted only
in those states where he or she is admitted to practice.
UPL Op. 196 (2000).
As
to your second inquiry concerning matters involving
federal law, a foreign attorney may advise and prepare
legal documents for a Virginia client in Virginia
on such matters, assuming that the foreign attorney
is admitted to practice before that federal court. Such advice and document
preparation may be provided only to the extent that
the federal matter is not impacted by Virginia law
and if Virginia legal issues are not involved. UPL
Op. 158 (1996). A non-Virginia licensed attorney
may also be authorized by federal law to represent
persons before a federal administrative agency and
may therefore give advice to and prepare legal instruments
for such clients in the regular course and within
the scope of practice authorized by such federal
agency. UPR 9-102. The committee has previously
opined that it is not the unauthorized practice
of law for an attorney, not licensed in the Commonwealth
of Virginia, to maintain an office in Virginia for
a practice limited exclusively to matters before
the United States Immigration and Naturalization
Service. UPL Op. 55 (1983). However, such attorneys
must indicate on their letterhead stationery and
other public communications that their practice
is limited exclusively to practice before that agency.
Id. See also UPL Op. 196 (2000). Therefore, an attorney in your
multi-jurisdictional law firm need not be admitted
to the Virginia State Bar to represent clients in
Virginia on matters involving federal law as described
above. However, any law firm letterhead stationery
or other public communications identifying such
lawyer as practicing in the Virginia office must
denote the limitation on that lawyerís practice.
UPL Op. 196 (2000).
As
to your third inquiry, the committee has previously
opined that it would constitute the unauthorized
practice of law for a foreign attorney to advise
any client in Virginia on matters that involve law
which is neither federal law nor the law of a jurisdiction
in which the foreign attorney is authorized to practice
law. UPL Op. 158 (1996). Therefore, a non-Virginia
licensed attorney practicing in the Virginia office
of a multi-jurisdictional law firm cannot meet with
clients in Virginia to give legal advice involving
the application of the law of a jurisdiction in
which the attorney is not admitted to practice.
Finally,
in response to your fourth inquiry, A foreign attorney
is regarded as a “non-lawyer” for purposes
of the unauthorized practice of law rules. Va. S.
Ct. R., pt. 6, § I (C).
Except as permitted under the cited rule, a foreign
attorney, although admitted to and in good standing
in the bar of his home jurisdiction, may not advise
or prepare legal documents for a Virginia client
in Virginia on matters involving Virginia law. The
foreign attorney may give advice to and prepare
legal instruments for a Virginia lawyer who may
then decide whether such work product is acceptable
for the client. UPL Op. 107 (1987). Therefore, a
non-Virginia licensed attorney may provide legal
services concerning Virginia law when directly supervised
by a Virginia-licensed attorney if the attorney-client
relationship remains between the Virginia attorney
and the client.
Committee
Opinion
January 22, 2001
Approved
by Council
June 14, 2001
Approved
by the Virginia Supreme Court
October 1, 2001
UPL Op. 100 prohibited a D.C. attorney, who desired
to move his practice to Virginia, from conducting
a practice involving federal legislative, governmental
and advisory matters, none of which involved the
application of Virginia law. UPL Op. 107 declared
that it is the unauthorized practice of law for
a non-Virginia attorney to render legal advice
in Virginia even on the law of his home jurisdiction.
Both opinions were overruled by UPL Op. 158 (1996).
See also UPL Op. 195 (2000).
A foreign attorney must be careful, however, to observe
the local rules of the federal courts sitting
in Virginia, which require that an attorney either
be a member of the Virginia State Bar, or be admitted
on motion, pro hac vice, in association
with an attorney admitted to practice in the Virginia
federal courts. See Local Rule 83.1 of
the United States District Court for Eastern District
of Virginia; Local Rule 3 of the United States
District Court for the Western District of Virginia.
Not all federal courts require attorneys to be
admitted to practice in the state in which they
sit. Therefore, it is possible for a foreign attorney
in Virginia to advise a Virginia client on matters
pending in a federal court outside of Virginia,
if the foreign attorney is admitted to practice
in that federal court.
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.
The limited “transactional lawyer” exception
for foreign attorneys in Va. S. Ct. R., pt. 6,
ß I (C) does not apply to the facts in this opinion
because the foreign attorney is practicing regularly
in a Virginia law office and not “incidentally”
and “occasionally” as contemplated by
the cited rule.
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