Thank you for sharing!

Your article was successfully shared with the contacts you provided.

In the time-honored September tradition of sending the kids off to school and getting “back to basics,” in this column we address one of the fundamental precepts of legal ethics and professional responsibility: in order to practice law in a particular jurisdiction, an attorney must be licensed.

In particular, we examine how licensing requirements apply to out-of-state lawyers coming here, Pennsylvania lawyers going there, and in-house counsel, whose practices take them here, there, and everywhere.

Before the proliferation of global clients and practices, it was almost as simple as it sounds: An attorney admitted here, practiced here. But the realities of modern practice have significantly changed the landscape. Now, a Pennsylvania attorney is just as likely to be representing a client located, doing business or involved in litigation out-of-state. In such cases, the attorney must take care to comply with the applicable multi-jurisdictional practice rules in order to avoid engaging in the unauthorized practice of law.

ABA Model Rule 5.5 governs multijurisdictional practice. Pennsylvania is one of 22 states that have adopted a rule similar to the model rule; 11 states have adopted an identical rule, and the remaining states are currently considering adoption of some version of the model rule. Rule 5.5 of the Pennsylvania Rules of Professional Conduct addresses both the out-of-state attorney practicing here, and the Pennsylvania attorney practicing elsewhere.

For the out-of-state attorney, Rule 5.5(c) sets out the circumstances under which the lawyer may practice on a temporary basis. These circumstances include providing legal services undertaken either in association with a lawyer admitted to practice in Pennsylvania or with the understanding that pro hac vice admission is reasonably expected. An out-of-state lawyer may also provide temporary services reasonably related to the lawyer’s practice in her home jurisdiction, where these services – such as depositions – do not require pro hac vice admission.

A recent Philadelphia bar ethics opinion addresses the concerns of a Pennsylvania lawyer seeking to provide services to clients in jurisdictions where she is not admitted. The opinion emphasizes that the lawyer must be aware of both Pennsylvania Rule 5.5 and the applicable rules of the foreign jurisdiction. When determining whether one is engaging in the unauthorized practice of law in another jurisdiction, “reliance on either Pennsylvania’s Rule 5.5 or the ABA Model Rule provides neither guidance nor protection.”

The lawyer must review the applicable jurisdiction’s definition of the “practice of law” and then examine the exceptions, if any, for out-of-state lawyers not admitted in that jurisdiction. As the opinion notes, Rule 5.5(a) prohibits a Pennsylvania attorney from practicing law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” Thus, a Pennsylvania lawyer who violates another state’s rules relating to the unauthorized practice law also violates the Pennsylvania rules and can be subjected to discipline in both states.

The exposure to multijurisdictional discipline is a significant potential consequence of multijurisdictional practice. In a recent Delaware case, the Delaware Supreme Court took this principle to its logical, if extreme, conclusion: a lawyer does not need to be admitted in a jurisdiction to be disbarred there. In In re Tonwe, a lawyer admitted in Pennsylvania was disciplined in Delaware for practicing law there without a license. This was her second offense. The Delaware Supreme Court considered whether a non-admitted attorney could be disbarred. Defining disbarment as “the unconditional exclusion from the . . . exercise of any privilege to practice law in this state,” the Delaware Supreme Court concluded that disbarment was both available and appropriate. Disbarment in another jurisdiction is a basis for reciprocal disciplinary proceedings in Pennsylvania, as it is in most states.

How do these rules affect the in-house lawyer of a national, or multinational, corporation? Does she have to be licensed in every jurisdiction affected by her activity in order to avoid engaging in the unauthorized practice of law? Lately, corporate counsel have come under scrutiny regarding compliance with state licensing rules, with recent reports identifying general counsel for large publicly traded companies as among those who may be breaking the applicable rules.

Lack of compliance with state licensure requirements not only carries the risk of embarrassing publicity, but may also provide an opening for a creative opponent to argue that the work product of, or communications with, an unlicensed corporate attorney are not entitled to the protection of the attorney-client or work product privileges.

Currently, 26 states require a special license for in-house counsel not otherwise admitted to practice in the jurisdiction. Pennsylvania Rule 5.5 allows an in-house lawyer admitted to the bar in another state or jurisdiction to provide legal services on a temporary basis in Pennsylvania, even if she is not admitted to the Pennsylvania bar, so long as she is admitted to practice in another United States jurisdiction; is in good standing (not disbarred or suspended) in the jurisdiction where she is admitted; only provides legal services to the employer and is not providing personal legal services to other employees of the company or outside individuals; and she is practicing in a forum that does not require pro hac vice admission.

Pennsylvania Rule 5.5(d) also provides an option to in-house lawyers seeking to practice on a more permanent basis in the commonwealth without being admitted to the Pennsylvania bar. These lawyers can, and must, obtain a limited in-house corporate counsel license. Pennsylvania bar Admission Rule 302 requires every attorney who is employed by and performs legal services in Pennsylvania for a corporation, company, partnership, association or other non-governmental business entity, to obtain this license in order to provide such services if the services are rendered on more than a temporary basis by the attorney, or if the attorney maintains an office or other systematic and continuous presence in Pennsylvania.

Requirements for the in-house corporate counsel license include a law school degree; proof of admission to practice in another state or United States territory; no prior conduct that would be “incompatible with the standards expected of members of the Pennsylvania bar;” a certificate of good standing from the highest court in “every jurisdiction in which the applicant has been admitted to practice law;” a sworn statement from the applicant certifying that she will only be working for one employer; and a statement from the employer certifying that the applicant is an employee who performs legal services for the business. There is an annual fee, and 12 hours of CLE credits a year are required.

New Jersey and Delaware each provide for similar limited licenses. A lawyer not admitted to the New Jersey bar must comply with the provisions of New Jersey Rule 1:27-2 in order to be eligible to practice law there as in-house counsel. A limited license issued pursuant to Rule 1:27-2 authorizes the lawyer to practice in New Jersey solely for the designated employer. Any corporate counsel with a limited license is nevertheless governed by the full panoply of rules, rights and privileges governing the practice of law in New Jersey.

As in Pennsylvania, an applicant for a New Jersey in-house counsel limited license must demonstrate that she is a member in good standing of the bar of the highest court of, and provide a certificate of good standing from, each jurisdiction in which she is admitted.

Delaware Rule of Conduct 5.5, in conjunction with Delaware Supreme Court Rule 55-1, titled “Registration for Limited Practice of In-House Lawyers,” permits in-house counsel to provide services to their employer and its organizational affiliates without being admitted to the Delaware bar. To obtain this certificate, in-house counsel must, among other requirements: File, under oath, the appropriate Supreme Court application; provide an affidavit from her employer attesting to her employment with the organization and the nature of that employment; and certify that she has read and is familiar with the Delaware Lawyers Rules of Professional Conduct.

Delaware in-house counsel with certificates of limited practice may not make court appearances or engage in other activities requiring admission pro hac vice, and may not provide legal services to an employer’s officers or employees in their personal capacity.

So as the kids head back to school, take a refresher course of your own. Look at Pennsylvania Rule 5.5 and the analogous rule in the additional jurisdictions in which you most frequently practice. Most important, make sure you are in compliance, no matter where you practice.

Karen M. Ibach, a litigation associate at Montgomery McCracken Walker & Rhoads, contributed to the research and drafting of this article.

ELLEN C. BROTMAN serves as of counsel to Montgomery McCracken Walker & Rhoads’ white collar crime and government investigations group and chairwoman of its professional responsibility group, after several years of being a principal in the firm of Carroll & Brotman. Brotman is also a former assistant federal defender with the Philadelphia Community Defenders Organization.

MICHAEL B. HAYES is a senior litigation associate with the firm and is a member of the firm’s professional responsibility practice group. Prior to joining the firm, Hayes served as a law clerk to Justice Russell Nigro of the Pennsylvania Supreme Court.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.