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Cullen: Architect of state bar’s new two-tier plan The Virginia Supreme Court has decided to permit lawyers to work in the state as in-house counsel without ever becoming members of the state bar. Issued in January, the court’s somewhat unexpected decision rejected a more restrictive proposal from the state bar that many in-house attorneys had criticized as burdensome and bad for business. At press time the Virginia bar had already started work on implementing the proposal, which was expected to be in place as early as this month. A two-tier system will be set up in which company lawyers who want to waive in to the state bar can do so, but those who don’t want or need to can simply register with the bar. Lawyers on the registry will still be subject to bar discipline in Virginia if they act unethically. Additionally, these lawyers will not be allowed to represent any clients other than their employer. The scheme will likely prohibit pro bono work in most instances. Dues for an active member of the Virginia bar are $250 a year, while lawyers on the registry would pay only $50 a year. The two-tier plan was put forward by Richard Cullen, a former state attorney general who is a partner at McGuireWoods in Richmond. He also represents New York — based Verizon Communications Inc., which employs 45 in-house lawyers in Virginia, many of whom aren’t admitted to practice in the state. Cullen argued for his proposal by pointing to the recent growth of Northern Virginia as a haven for high-tech and telecommunications companies. “This is a result that makes sense,” he says. Other major companies operating in the state — including AOL Time Warner Inc., Nextel Communications, Inc., and Smithfield Foods Inc. — weighed in to support the two-tier plan. Still Subject To Discipline The key point of the two-tier proposal, say Cullen and other supporters, is its provision giving the Virginia bar the power to discipline in-house attorneys whose names appear on the registry but who are not formally admitted to practice. That resolved the bar’s concern that some wayward lawyers might fall through the disciplinary cracks. Once the new plan is in place, life will become easier for in-house counsel and for their employers. Cullen explains that if a company based in Pittsburgh, for example, decides to transfer an in-house lawyer to McLean, Virginia, the lawyer “just has to register, let them know she’s here, certify that she’s in good standing in some other state, and say she doesn’t want to be in the first tier [the one that leads to formal admission].” Under a competing proposal put forth by the Virginia bar and re-jected by the state’s high court, that lawyer would have had to take annual legal education classes. That plan, Cullen says, “could have been a roadblock to those who would relocate in Virginia.” Opponents Have Come Around Cullen’s two-tier proposal has not only won the court’s approval, but also seems to have disarmed the opposition. W. Scott Street III, a partner at Richmond’s Williams Mullen, chaired the bar task force that made the now-discarded recommendation that all in-house counsel become bar members. But now that the state supreme court has acted, Street is backing the new approach. “Richard [Cullen] produced something logical, and the court found it pretty persuasive,” says Street. “This will probably be one of the most progressive rules of any state in the country.” In-house attorneys and their advocates are understandably pleased about the Virginia action. “This rule accommodates corporate counsel’s interests in both directions — both those who want a [two-tier] approach and those who are interested in a more robust offering,” says Susan Hackett, senior vice president and GC of the American Corporate Counsel Association. Street says his task force is now preparing the wording for the new rule. He says he will “run it by [Cullen] and make sure it comports with his understanding,” then send the document back to the court for final approval. “I’m looking forward to involving many of the talented in-house counsel in the affairs and activities of the Virginia state bar,” says Street. “We have no intention of creating a second-class citizenship.”

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