The Supreme Court of Virginia Approved Proposed Amendments to Rules 5.5 and 8.5

of the Rules of Professional Conduct

The Virginia Supreme Court approved amendments to Rules 5.5 & 8.5 of the Rules of Professional Conduct effective March 1, 2009.

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, unauthorized practice of law by attorneys or non-attorneys was 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. 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 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 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/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.

Updated: Jan 13, 2010