Adopted | amendment to Rule 5.5, Unauthorized Practice Of Law;
Multijurisdictional Practice of Law.
Approved by the Supreme Court of Virginia December 23, 2020, effective
immediately.
December 23, 2020
On December 23, 2020, the Supreme Court of Virginia approved the amendments to
Rule 5.5. Effective immediately.
View the Court's order (PDF)
October 23, 2020
The proposed amendments were approved by Bar Council on October 23, 2020, and
are pending consideration by the Supreme Court of Virginia.
View the petition to the Court (pdf)
View appendix to the petition to the Court (pdf)
August 27, 2020
At its meeting on August 27, 2020, the Standing Committee on Legal Ethics
approved submitting the amendments to the Executive Committee and Bar Council
for approval at their upcoming October meetings.
The Standing Committee on Legal Ethics approved the proposed rule changes but
voted to delay submission to Bar Council pending staff’s decision to make
changes as a result of required minor amendments that address typos or
inconsistencies in the comments to these rules.
May 2019
Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of
Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics is
seeking public comment on proposed amendments to Rule 5.5 of the Rules of
Professional Conduct.
The proposed amendments to Rule 5.5 include updating Comments 4 and 21 to
reflect the current numbering of the advertising rules and correcting Comment
6, which twice uses the phrase “Foreign lawyer,” when “Foreign Lawyer” is a
defined term under the rule and should be capitalized in every instance. The
proposed amendments also revise Comment 14 to remove the phrase “(d)(4)(ii)”
from the introductory sentence; that comment refers to the requirement of
paragraphs (d)(4)(iii) and (d)(4)(iv) that the services provided in Virginia
arise out of or be reasonably related to the Foreign Lawyer’s practice
elsewhere, but paragraph (d)(4)(ii) does not contain such a requirement in the
body of the Rule and therefore should not be included in this comment.
Inspection and Comment
The proposed rule amendments may be inspected below or at the office of the
Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia
23219-0060, between the hours of 9:00 a.m. and 4:30 p.m., Monday through
Friday, or by contacting the Office of Ethics Counsel at 804-775-0557.
Any individual, business, or other entity may file or submit written comments
in support of or in opposition to the proposed opinion with Karen A. Gould,
executive director of the Virginia State Bar, not later than May 24, 2019.
Comments may be submitted via email to [email protected].
RULE 5.5 Unauthorized Practice Of
Law; Multijurisdictional Practice of Law
(a) A lawyer, law firm or professional corporation shall not employ in any
capacity a lawyer whose license has been suspended or revoked for
professional misconduct, during such period of suspension or revocation, if
the disciplined lawyer was associated with such lawyer, law firm, or
professional corporation at any time on or after the date of the acts which
resulted in suspension or revocation.
(b) A lawyer, law firm or professional corporation employing a lawyer as a
consultant, law clerk, or legal assistant when that lawyer’s license
is suspended or revoked for professional misconduct shall not represent any
client represented by the disciplined lawyer or by any lawyer with whom the
disciplined lawyer practiced on or after the date of the acts which resulted
in suspension or revocation.
(c) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another
in doing so.
(d) Foreign Lawyers:
(1) "Foreign Lawyer" is a person authorized to practice law by
the duly constituted and authorized governmental body of any State or
Territory of the United States or the District of Columbia, or a foreign
nation, but is neither licensed by the Supreme Court of Virginia or
authorized under its rules to practice law generally in the Commonwealth of
Virginia, nor disbarred or suspended from practice in any
jurisdiction.
(2) A Foreign Lawyer shall not, except as authorized by these Rules or
other law:
(i) establish an office or other systematic and continuous presence in
Virginia for the practice of law, which may occur even if the Foreign Lawyer
is not physically present in Virginia; or
(ii) hold out to the public or otherwise represent that the Foreign Lawyer
is admitted to practice law in Virginia.
(3) A Foreign Lawyer shall inform the client and interested third parties
in writing:
(i) that the lawyer is not admitted to practice law in Virginia;
(ii) the jurisdiction(s) in which the lawyer is licensed to practice;
and
(iii) the lawyer’s office address in the foreign
jurisdiction.
(4) A Foreign Lawyer may, after informing the client as required
in 3(i)-(iii) above, provide legal services on a temporary and occasional
basis in Virginia that:
(i) are undertaken in association with a lawyer who is admitted to practice
without limitation in Virginia or admitted under Part I of Rule 1A:5 of this
Court and who actively participates in the matter;
(ii) are in or reasonably related to a pending or potential proceeding
before a tribunal in Virginia or another jurisdiction, if the Foreign
Lawyer, or a person the Foreign Lawyer is assisting, is authorized by law or
order to appear in such proceeding or reasonably expects to be so
authorized;
(iii) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in Virginia or
another jurisdiction, if the services arise out of or are reasonably related
to the Foreign Lawyer’s practice in a jurisdiction in which the
Foreign Lawyer is admitted to practice and are not services for which the
forum requires pro hac vice admission; or
(iv) are not within paragraphs (4)(ii) or (4)(iii) and arise out of or are
reasonably related to the representation of a client by the Foreign
Lawyer in a jurisdiction in which the Foreign Lawyer is admitted to practice
or, subject to the foregoing limitations, are governed primarily by
international law.
(5) A foreign legal consultant practicing under Rule 1A:7 of
this Court and a corporate counsel registrant practicing under Part II of
Rule 1A:5 of this Court are not authorized to practice under this
rule.
Comment
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is
authorized to practice. A lawyer may be admitted to practice law in a
jurisdiction on a regular basis or may be authorized by court rule or order or
by law to practice for a limited purpose or on a restricted basis. Paragraph
(c) applies to unauthorized practice of law by a lawyer, whether through the
lawyer’s direct action or by the lawyer assisting another person.
[1a] For purposes of paragraphs (a) and (b), "Lawyer" denotes a person
authorized by the Supreme Court of Virginia or its Rules to practice law in
the Commonwealth of Virginia including persons admitted to practice in this
state pro hac vice.
[2] The definition of the practice of law is established by law and varies
from one jurisdiction to another. Whatever the definition, limiting the
practice of law to members of the bar protects the public against rendition of
legal services by unauthorized persons. Paragraph (c) does not prohibit a
lawyer from employing the services of paraprofessionals and delegating
functions to them, so long as the lawyer supervises the delegated work and
retains responsibility for their work. SeeRule 5.3.
[3] Likewise, the definition of the practice of law does not prohibit lawyers
from providing professional advice and instruction to nonlawyers whose
employment requires knowledge of law — for example, claims adjusters,
employees of financial or commercial institutions, social workers,
accountants, and persons employed in government agencies.
[4] Other than as authorized by law or this Rule, a Foreign Lawyer violates
paragraph (d)(2)(i) if the Foreign Lawyer establishes an office or other
systematic and continuous presence in Virginia for the practice of law.
Presence may be systematic and continuous even if the Foreign Lawyer is not
physically present here. Such "non-physical" presence includes, but
is not limited to, the regular interaction with residents of Virginia for
delivery of legal services in Virginia through exchange of information over
the Internet or other means. Such Foreign Lawyer must not hold out to the
public or otherwise represent that the Foreign Lawyer is admitted to practice
law in Virginia. Seealso,Rules7.1(a) and 7.5(b). Despite the foregoing general prohibition, a Foreign Lawyer may
establish an office or other systematic and continuous presence in Virginia if
the Foreign Lawyer’s practice is limited to areas which by state or
federal law do not require admission to the Virginia State Bar. Examples
of lawyers admitted in another United States jurisdiction include those
lawyers whose practices are limited to federal tax practice before the IRS and
Tax Court, patent law before the Patent and Trademark Office, or immigration
law. A Foreign Lawyer admitted to practice in a jurisdiction
outside the United States may be authorized to practice under Rule 1A:7 as a
foreign legal consultant and may likewise establish an office or other
systematic and continued presence in Virginia.
[5] Paragraph (d)(4) identifies circumstances in which a Foreign Lawyer may
provide legal services on a temporary basis in Virginia that do not create an
unreasonable risk to the interests of their clients, the public, or the
courts. The fact that conduct is not so identified does not imply that the
conduct is or is not authorized. Except as authorized by this rule or other
law, a Foreign Lawyer may not establish an office or other systematic and
continuous presence in Virginia without being admitted to practice generally
here.
[6] There is no single test to determine whether a Foreign Lawyer’s
services are provided on a "temporary basis" in Virginia, and may therefore be
permissible under paragraph (d)(4). Services may be
"temporary" even though the Foreign Lawyer provides services in Virginia on a
recurring basis, or for an extended period of time, as when the Foreign Lawyer
is representing a client in a single lengthy negotiation or
litigation. "Temporary" refers to the duration of the
Foreign Llawyer’s presence and provision of services,
while "occasional" refers to the frequency with which the Foreign Llawyer comes into Virginia to provide legal services.
[7] Paragraph (d)(1) requires that the Foreign Lawyer be authorized to
practice in the jurisdiction in which the Foreign Lawyer is admitted and
excludes a Foreign Lawyer who, while technically admitted, is not authorized
to practice because, for example, the Foreign Lawyer is on inactive
status.
[8] Paragraph (d)(4)(i) recognizes that the interests of clients and the
public are protected if a Foreign Lawyer associates with a lawyer licensed to
practice Virginia. For this paragraph to apply, however, the lawyer admitted
to practice in Virginia must actively participate in and share responsibility
for the representation of the client.
[9] Foreign Lawyers not admitted to practice generally in this jurisdiction
may be authorized by law or order of a tribunal or an administrative agency to
appear before the tribunal or agency. Under paragraph (d)(4)(ii), a Foreign
Lawyer does not violate this Rule when the Foreign Lawyer appears before a
tribunal or agency pursuant to such authority. To the extent that a court rule
or other law of Virginia requires a Foreign Lawyer to obtain admission pro hac
vice before appearing before a tribunal or administrative agency, this Rule
requires the Foreign Lawyer to obtain that authority.
[10] Paragraph (d)(4)(ii) also provides that a Foreign Lawyer rendering
services in Virginia on a temporary basis does not violate this Rule when the
Foreign Lawyer engages in conduct in anticipation of a proceeding or hearing
in a jurisdiction in which the Foreign Lawyer is authorized to practice law or
in which the Foreign Lawyer reasonably expects to be admitted pro hac vice.
Examples of such conduct include meetings with the client, interviews of
potential witnesses, and the review of documents. Similarly, a Foreign Lawyer
may engage in conduct temporarily in Virginia in connection with pending
litigation in another jurisdiction in which the Foreign Lawyer is or
reasonably expects to be authorized to appear, including taking depositions in
Virginia.
[11] ABA Model Rule Comment not adopted.
[12] Paragraph (d)(4)(iii) permits a Foreign Lawyer to perform services on a
temporary basis in Virginia if those services are in or reasonably related to
a pending or potential arbitration, mediation, or other alternative dispute
resolution proceeding in this or another jurisdiction, if the services arise
out of or are reasonably related to the Foreign Lawyer’s practice in a
jurisdiction in which the Foreign Lawyer is admitted to practice. The Foreign
Lawyer, however, must obtain admission pro hac vice in the case of a
court-annexed arbitration or mediation or otherwise if court rules or law so
require.
[13] Paragraph (d)(4)(iv) permits a Foreign Lawyer to provide certain legal
services on a temporary basis in Virginia that arise out of or are reasonably
related to that lawyer’s practice in a jurisdiction in which the Foreign
Lawyer is admitted but are not within paragraphs (d)(4)(ii) or
(d)(4)(iii). These services include both legal services and
services that nonlawyers may perform but that are considered the practice of
law when performed by lawyers.
[14] Paragraphs (d)(4)(ii),(d)(4)(iii),and (d)(4)(iv)
require that the services arise out of or be reasonably related to the Foreign
Lawyer’s practice in a jurisdiction in which the Foreign Lawyer is
admitted to practice. A variety of factors evidence such a relationship. The
Foreign Lawyer’s client may have been previously represented by the
Foreign Lawyer, or may be resident in or have substantial contacts with the
jurisdiction in which the Foreign Lawyer is admitted. The matter, although
involving other jurisdictions, may have a significant connection with that
jurisdiction. In other cases, significant aspects of the Foreign
Lawyer’s work might be conducted in that jurisdiction or a significant
aspect of the matter may involve the law of that jurisdiction. The necessary
relationship might arise when the client’s activities or the legal
issues involve multiple jurisdictions, such as when the officers of a
multinational corporation survey potential business sites and seek the
services of their Foreign Lawyer in assessing the relative merits of each. In
addition, the services may draw on the Foreign Lawyer’s recognized
expertise developed through the regular practice of law on behalf of clients
in matters involving a particular body of federal, nationally-uniform,
foreign, or international law.
[14a] Paragraph (d)(4)(iv) recognizes that a Foreign Lawyer may provide legal
services when the services provided are governed by international law or the
law of a foreign jurisdiction in which the Foreign Lawyer is admitted to
practice.
[15 - 18] ABA Model Rule Comments not adopted.
[19] A Foreign Lawyer who practices law in Virginia pursuant to this Rule is
subject to the disciplinary authority of Virginia. See Rule 8.5(a).
[20] ABA Model Rule Comment not adopted.
[21] Paragraph (d)(4) does not authorize communications advertising legal
services to prospective clients in Virginia by Foreign Lawyers who
are admitted to practice in other jurisdictions. Whether and how Foreign
Lawyers may communicate the availability of their services to prospective
clients in Virginia is governed by Rules 7.1and 7.3 to 7.5.