VIRGINIA UPL OPINION 195


Virginia Attorney In Partnership With An Attorney Licensed Outside The U.S.

I am writing in response to your correspondence of August 27, 1999, requesting an Unauthorized Practice of Law (UPL) advisory opinion dealing with the propriety of an attorney licensed to practice law in Virginia forming and operating a partnership or other professional association with an attorney not licensed in the United States. Your inquiry raises not only unauthorized practice issues, which the committee will address below, but also ethical issues which are beyond its purview. Therefore, those matters which involve legal ethics have been referred to the Standing Committee on Legal Ethics for its consideration.

You have asked the UPL Committee to opine whether a non-United States attorney, i.e., an attorney licensed and admitted to practice in another country, and who is licensed in a state other than Virginia as a “Foreign Legal Consultant (FLC),??? [1] would be considered a “non-lawyer???for purposes of Virginia’s Unauthorized Practice of Law Rules. Va. S. Ct. R., Part Six, Section I.

Second, assuming that the answer to the first question is “yes,??? i.e., that the FLC would be regarded as a “non-lawyer???under Virginia’s UPL rules and definitions, you have asked whether it would be permissible for a Virginia attorney to form a partnership with the FLC to practice law in the Commonwealth of Virginia.

Your third inquiry is whether the Virginia lawyer could still form a partnership with the FLC even if the FLC was not licensed as such in any state in the United States.

The Committee considered your inquiries at its December 9, 1999 meeting and has directed me to transmit its conclusions to you. The Committee will address your first inquiry since it involves application of UPL rules and definitions. The second and third inquiries, being ethical in nature, are being referred to the Standing Committee on Legal Ethics.

The appropriate and controlling Virginia Unauthorized Practice Rule is Va. S. Ct. R., Part Six, Section I (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.

The Committee is of the opinion that the FLC in your hypothetical is a “non-lawyer.??? Moreover, the exception under Part Six, Section I (C) for foreign attorneys was a narrow one intended only to permit non-Virginia attorneys, licensed in another state in the United States, to provide incidental and occasional legal services to a client, including matters involving the application of Virginia law, where the foreign attorney represents that client in the state where he or she is admitted to practice. In short, the rule was amended in 1996 to allow transactional lawyering by a non-Virginia attorney that would otherwise constitute the unauthorized practice of law in Virginia. See, e.g., UPL Op. 158 (1996). Part Six, Section I (C) cannot be construed as allowing a non-Virginia attorney to establish a regular practice in Virginia of advising clients on matters involving the application of Virginia law.

In UPL Opinion 158 the Committee 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 the jurisdiction in which the foreign attorney is authorized to practice law.Therefore, it would appear, conversely, that a foreign attorney may advise a client in Virginia on matters involving the law of the jurisdiction in which the foreign attorney is admitted to practice. This interpretation seems appropriate in that UPL Opinion 158 expressly overruled prior UPL Opinions 100 and 107. [2]

Thus, for example, a multi-jurisdictional law firm with an office in Virginia, staffed with Virginia admitted lawyers, could employ a foreign attorney or FLC. However, the foreign attorney or FLC must restrict his practice to advising clients on matters involving the law of the jurisdiction where he is authorized to practice. If the foreign attorney provides legal services to a client on matters involving the application of Virginia law, this would constitute the unauthorized practice of law unless the work is performed under the direct supervision of, and is reviewed by, a Virginia licensed attorney before given to the client.

Committee Opinion
April 13, 2000


1 One commentator notes that at least nineteen states in the United States have adopted rules allowing lawyers admitted in foreign countries to act as “foreign legal consultants.??? Andrew Pardieck, Foreign Legal Consultants: the Changing Role of the Lawyer in a Global Economy, 3 INDIANA JOURNAL OF GLOBAL STUDIES, Vol.2, at 1 (Spring 1996). In 1974, New York became the first state to adopt a rule permitting FLCs. See N.Y.Ct.R. App. pt. 521. The scope of practice is limited to rendering advice on the law of the foreign country where the FLC is admitted to practice. Other restrictions, including reciprocity for U.S. lawyers, apply.
2 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.

 

Updated: Aug 28, 2006