October 25, 2007
Council to Review Proposed Amendments to Rules 5.5 and 8.5 Of the Rules of Professional Conduct
Pursuant to Part Six: Section IV, Paragraph 10(c) of the Rules of the Supreme Court of Virginia, the Virginia State Bar Council, at its meeting on March 1, 2008 in Richmond, Virginia, is expected to consider for approval, disapproval, or modification, proposed amendments to Rules 5.5 and 8.5 of the Rules of Professional Conduct.
The proposed amendments to Rules 5.5 and 8.5 are the work product of the Virginia State Bar’s Task Force on Multi-Jurisdictional Practice (“MJP Task Force???). The MJP Task Force was created to study foreign attorney practice in Virginia and make recommendations concerning the requirements under which non-Virginia lawyers should be permitted to practice in Virginia. One of the foremost tasks of the MJP Task Force is to develop rules that define and regulate temporary practice in Virginia by lawyers who are not members of the Virginia State Bar. The proposed amendment to Rule 5.5 addresses criteria for temporary practice and unauthorized practice of law in Virginia by foreign attorneys in Virginia. The proposed amendment to Rule 8.5 addresses the disciplinary authority and jurisdiction of the Virginia State Bar over foreign attorneys practicing in Virginia.
Proposed Rule 5.5 presented here is a revised version of the rule presented to and approved by Bar Council in March 2006 and which was then submitted to the Virginia Supreme Court for review and approval. The present proposed Rule 8.5 is the same rule presented to and approved by Bar Council in March 2006 and submitted thereafter to the Virginia Supreme Court. No revisions have been made to this rule.
While under the Court’s review certain necessary revisions were identified for proposed Rule 5.5 and on February 13, 2007, the Virginia State Bar withdrew its petition for approval of this rule and Rule 8.5. The MJP Task Force reconvened in April and August 2007 to make the revisions and produced the current proposed Rule 5.5. Specifically, the MJP Task Force revised paragraph (d)(4)(iv), deleting the language “or the law of a non-U.S. jurisdiction;??? added paragraph (d)(5); and added the language “in which the Foreign Lawyer is admitted to practice??? to the end of Comment .
Rule 5.5 - Temporary Practice by a Foreign Lawyer
The proposed amendment to Rule 5.5 is patterned after ABA Model Rule 5.5. It 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. Under current Virginia law, unauthorized practice of law by attorneys or non-attorneys is regulated and monitored by the Virginia State Bar’s Standing Committee on the Unauthorized Practice of Law (“the UPL Committee???) and governed by Virginia’s Unauthorized Practice of Law Rules, the Definition of the Practice of Law in Virginia, and Part 6, §I (C), Rules of Supreme Court of Virginia. Proposed Rule 5.5 makes practice by non-Virginia licensed lawyers, other than as authorized by the rule, a disciplinary matter. Part 6, §I (C), Rules of Supreme Court of Virginia would be eliminated and the UPL Committee would deal only with unauthorized practice of law by non-attorneys.
The proposed Rule 5.5 authorizes a Foreign Lawyer to provide legal services in Virginia on a “temporary and occasional basis??? (similar to what is currently allowed under Part 6,§I (C), Rules of Supreme Court of Virginia) only if they 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/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 proposed rule 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 proposed 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 proposed rule, specifically excludes a corporate counsel registrant practicing under Part II of Rule 1A:5 of the Rules of the Virginia Supreme Court and, should the Virginia Supreme Court approve the rule, a foreign legal consultant practicing under proposed Rule 1A:7 of the Rules of the Virginia Supreme Court form being authorized to practice under proposed Rule 5.5.
Rule 8.5 - Disciplinary Authority and Choice of Law
The proposed amendment to Rule 8.5, patterned after ABA Model Rule 8.5, addresses disciplinary authority and choice of law in disciplinary cases and provides enforcement authority for proposed Rule 5.5. The proposed 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 proposed amendment to 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/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. The ABA Model Rule provides for a choice of law where the conduct had its “predominant effect;??? however, the Task Force chose not to include this in the Virginia rule revision because it believed that where the conduct occurred provided a brighter line for enforcement than the “predominant effect??? test.
Nine states have adopted ABA Model Rules 5.5 and 8.5, in whole or in part, and fifteen others have endorsed and submitted proposed revisions consistent with ABA recommendations to their highest courts.
Inspection and Comment
The proposed amendments may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed amendments can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar's Web Page at http://www.vsb.org
Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed amendments by filing ten copies with Thomas A. Edmonds, the Executive Director of the Virginia State Bar, not later than January 4, 2008.Updated: Oct 25, 2007