Multijurisdictional Practice Task Force
Marni E. Byrum, chair
The Supreme Court of Virginia approved the Multijurisdictional Practice Task Force’s proposed amendments to Rules 5.5 & 8.5 of the Rules of Professional Conduct, effective March 1, 2009. The Court also adopted the MJP Task Force’s proposed new rule 1A:7 of the Rules of the Virginia Supreme Court, effective January 1, 2009, that provides opportunity for limited practice by foreign lawyers in Virginia.
Rule 5.5 - Temporary Practice by a Foreign Lawyer
The new Rule 5.5 regulates unauthorized practice of law in Virginia by non-Virginia-licensed attorneys -- both those from other U.S. jurisdictions and those licensed in foreign countries. Prior to the adoption of this rule, UPL by attorneys or nonattorneys was regulated and monitored by the Virginia State Bar’s Standing Committee on the Unauthorized Practice of Law and governed by Virginia’s UPL rules, the definition of the practice of law in Virginia, and Part 6, §I (C), Rules of Supreme Court of Virginia. The new Rule 5.5 now makes practice by non-Virginia-licensed lawyers, other than as authorized by the rule, a disciplinary matter.
The new Rule 5.5 authorizes a foreign lawyer to provide legal services in Virginia on a “temporary and occasional basis” if the services are (1) undertaken in association with a licensed Virginia lawyer who actively participates in the matter; (2) related to a pending or potential proceeding in Virginia or another jurisdiction if the lawyer is authorized to appear or expects to be so authorized; (3) related to mediation or arbitration in Virginia or another jurisdiction if such services are related to the lawyer’s practice in his or her licensing jurisdiction and do not require pro hac vice admission; or (4) related to representation of a client in the foreign lawyer’s licensing jurisdiction or which are governed by international law.
The new Rule 5.5 prohibits a lawyer from establishing an office or other systematic presence in Virginia except as authorized by other Rules of Professional Conduct or other law. The new rule retains the long-standing restrictions under the current Rule 5.5 regarding the employment of a lawyer whose license has been suspended or revoked. Paragraph (d)(5), which was added to the new rule, specifically excludes a corporate counsel registrant practicing under Part II of Rule 1A:5 of the Rules of the Virginia Supreme Court, and excludes a foreign legal consultant practicing under proposed Rule 1A:7 of the Rules of the Virginia Supreme Court from being authorized to practice under proposed Rule 5.5.
Rule 8.5 - Disciplinary Authority and Choice of Law
The new Rule 8.5 addresses disciplinary authority and choice of law in disciplinary cases and provides enforcement authority for new Rule 5.5. The new rule extends the Virginia State Bar’s disciplinary authority over any lawyer who provides or holds out to provide legal services in Virginia, regardless of where the lawyer is licensed. Under the new Rule 8.5, a lawyer not admitted in Virginia, who provides or holds out to provide legal services in Virginia, shall consent to appointment of an official designated by the Supreme Court of Virginia as his or her agent for disciplinary service of process. The choice of law to be applied in a disciplinary matter will be: (1) the rules of the court, agency, or tribunal if the conduct in question occurred in connection with a matter before such court, agency, or tribunal; (2) for any other conduct, the rules of the jurisdiction where conduct occurred; or (3) the Virginia Rules of Professional Conduct, if the lawyer provides or holds out to provide legal services in Virginia.
Rule 1A:7: Foreign Legal Consultant (FLC) Rule
Lawyers who are licensed in a jurisdiction outside the United States now must be certified under Rule 1A:7 Certification of Foreign Legal Consultants if they want to establish an office and practice in Virginia to provide legal services based on the law of the foreign jurisdiction. Certification is not required for foreign lawyers who provide legal services in Virginia only on a temporary and occasional basis. Virginia-licensed lawyers who are also licensed by a jurisdiction outside the U.S. need not be certified as foreign legal consultants. The FLC Rule would apply, for example, to a lawyer licensed in India who wishes to open an office in Virginia from which he or she gives advice on matters of Indian law. That lawyer must be certified as a foreign legal consultant or face prosecution for the unauthorized practice of law.
Certification will be handled by the Virginia Board of Bar Examiners, which is developing an application form that will be posted at http://www.vbbe.state.va.us/forms.html. To qualify, a foreign lawyer must be at least age twenty-six and a member in good standing of a recognized legal profession. He or she must have practiced for at least five of the seven years preceding the application. The rule requires the applicant to submit a certificate of good standing from each jurisdiction of licensure, a letter of recommendation, and other documents — all translated into English. The applicant also must document his or her compliance with U.S. immigration laws.
The Board of Bar Examiners will conduct a character and fitness investigation of each applicant. Once certified, a foreign legal consultant must pay a $250 annual fee to the VSB. FLCs will be subject to regulatory oversight by the VSB. Complaints against FLCs will be handled by the bar’s disciplinary department. The certification also carves out a limited scope of practice for FLCs, and offers opportunities for practice previously unavailable in Virginia. FLCs can be partners in a Virginia law firm, and they can be employed by law firms. They can work as in-house counsel. They are accorded attorney-client, work product, and other professional privileges. The public will have access to the FLC’s contact information and record of public discipline.