UPL Opinion 215
In-house Counsel Based Outside Virginia Providing Legal Advice to Employer in Virginia
The controlling authority is Rule 1A:5, Rules of the Virginia Supreme Court and the Practice of Law in the Commonwealth of Virginia, Part 6 §I, (B) and (C), Rules of the Supreme Court of Virginia.
Rule 1A:5 of the Rules of the Virginia Supreme Court, Virginia Corporate Counsel & Corporate Counsel Registrants provides:
Notwithstanding any rule of this Court to the contrary, after July 1, 2004, any person employed in Virginia as a lawyer exclusively for a for-profit or a non-profit corporation, association, or other business entity, including its subsidiaries and affiliates, that is not a government entity, and the business of which consists solely of lawful activities other than the practice of law or the provisions of legal services (“Employer”), for the primary purpose of providing legal services to such Employer, including one who holds himself or herself out as “in-house counsel,” “corporate counsel,” “general counsel,” or other similar title indicating that he or she is serving as legal counsel to such Employer, shall either (i) be a regularly admitted active member of the Virginia State Bar; (ii) be issued a Corporate Counsel Certificate as provided in Part I of this rule and thereby become an active member of the Virginia State Bar with his or her practice limited as provided therein; or (iii) register with the Virginia State Bar as provided in Part II of this rule; provided, however, no person who is or has been a member of the Virginia State Bar, and whose Virginia License, at the time of application, is revoked or suspended, shall be issued a Corporate Counsel Certificate or permitted to register under this Rule.
Part I and Part II of this rule set out the certification and registration requirements for lawyers admitted to practice in U.S. jurisdictions other than Virginia or in a country other than the United States (Part II only):
Part I: Virginia Corporate Counsel
(a) A lawyer admitted to the practice of law in a state (other than Virginia), or territory of the United States, or the District of Columbia may apply to the Virginia State Bar for a certificate as a Virginia Corporate Counsel (“Corporate Counsel Certificate”) to practice law as in?house counsel in this state when he or she is employed by an Employer in Virginia.
Part II : Corporate Counsel Registrants
(a) Notwithstanding the requirements of Part I of this rule, any lawyer as defined in the Introduction and Part I(a) of this rule may register with the Virginia State Bar as a “Corporate Counsel Registrant.” A person admitted to the practice of law only in a country other than the United States, and who is a member in good standing of a recognized legal profession in that country, the members of which are admitted to practice law as lawyers, counselors at law, or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or public authority, may also register under Part II of this rule.
A Virginia-licensed attorney does not have to apply for certificate or registration pursuant to this rule nor does a non-Virginia-licensed attorney if that attorney is not located physically in Virginia as his/her base for employment as in-house counsel, corporate counsel, general counsel, etc.
The Definition of the Practice of Law in the Commonwealth of Virginia states:
Specifically, the relation of attorney and client exists, and one is deemed to be practicing law whenever
(1) One undertakes for compensation, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.
(2) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices or contracts incident to the regular course of conducting a licensed business. (Emphasis added).
Part 6, §I (B) Rules of the Supreme Court of Virginia. Paragraph (C) of Part 6, §I defines a “non-lawyer” and sets out the limits of temporary practice by a non-Virginia lawyer in Virginia:
(C) Definition of "Non-lawyer." 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.
In the inquiry presented, the lawyers involved are members of a financial institution’s legal department and are all based in offices outside of Virginia and are licensed to practice law in other U.S. jurisdictions other than Virginia, in particular, the jurisdictions where their offices are located. In this posture, they are not subject to the requirements of Rule 1A:5. The certificate and registration requirements of this rule apply only to lawyers not licensed in Virginia who are working in Virginia as corporate counsel, in-house counsel, general counsel, etc.
When these lawyers provide advice and counsel regarding Virginia law to employees of the financial institution employer located in branches in Virginia, they are not engaged in unauthorized practice. When they are providing the advice either from their offices outside of Virginia or when they visit the branches in-person in Virginia, this constitutes advising their regular employer which is permitted under Part 6, §I (B)(1) of the Rules of the Virginia Supreme Court. Should they have to prepare documents in either situation, again, these lawyers are providing this legal service only to their regular employer which is permitted under Part 6, §I (B)(2). These lawyers also fall within the scope of the temporary practice provisions of Part 6, §I (C). They represent the employer elsewhere and have occasion to have to come into Virginia in relation to that representation. This occurs only on a temporary or occasional basis. Nothing in this inquiry suggested that these lawyers were attempting to appear before any tribunal in Virginia on behalf of the employer, which would require association with Virginia-licensed counsel.
Finally, two earlier opinions from the Committee, UPL Opinions 93 and 99 are also instructive on the issues presented in this inquiry. In these opinions the Committee found that it was not the unauthorized practice of law for a non-Virginia-licensed attorney to prepare legal documents for a Virginia client relating to a Virginia matter when the attorney did so from his/her office in the jurisdiction where he/she was licensed. Similarly, if an attorney is providing legal advice to or on behalf of a Virginia client while located in his/her licensing jurisdiction, this will not be the unauthorized practice of law in Virginia. The Committee cautions that an attorney licensed other than in Virginia must also be aware of any applicable rules and/or limitations of his/her licensing jurisdiction and/or the jurisdiction where he/she is practicing regarding the practice of another jurisdiction’s law where the attorney is not licensed.
March 18, 2008