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Siobhan Roth Eighteen years after he took the California bar exam, Cooley Godward partner Daniel Westerman spent three weeks last summer locked in a hotel room with prep tapes studying for the Virginia test. Over at the new McLean office of another Silicon Valley firm, Wilson Sonsini Goodrich & Rosati, lateral hires Heather Cameron and Kieran Dickinson won’t be billing hours anytime soon. The two licensing specialists, who came from Washington D.C.’s Arnold & Porter and the D.C. office of Chicago’s Winston & Strawn, respectively, are spending their time studying for the Virginia bar exam in July. Even after they jump that hurdle, they’ll be sitting on the sidelines until their background checks are done and they are sworn in. Losing several months’ worth of billable hours is a significant hit for firms, especially with midlevel associate salaries hovering in the $150,000 range. But those empty timesheets are cheaper in terms of money and reputation than getting slapped with an investigation for the unauthorized practice of law. Trevor Chaplick, who leads Wilson Sonsini’s corporate practice in Virginia, says, “I came into this with the attitude that we’re a new kid on the block, so I’d rather keep our nose clean, be conservative, and bear the cost.” The Virginia State Bar is notoriously difficult to join on reciprocity from another jurisdiction. To waive into the Virginia bar, the would-be Virginia lawyer must have practiced actively for at least five of the last seven years in a jurisdiction that grants Virginia lawyers reciprocity. Neither Maryland nor California are reciprocal jurisdictions, though New York, Massachusetts, and the District of Columbia are. Lawyers cannot have failed either more than two bar exams in their careers or any in the past five years. They must also certify that they intend to practice full-time in Virginia upon admission: No swinging between the Reston, New York, and London offices allowed. “It was a painful process filling out the application,” says the 37-year-old Chaplick. “I had to get a DMV report from every jurisdiction where I’d ever held a license. I also had to have a report of every driving accident, even if those hadn’t been reported to the DMV. The only accidents I had were from high school.” It is also a lengthy process. Although Chaplick notified the bar long before his firm moved out here, one of the requirements for waiving in is that the applicant show a signed lease for office space in Virginia, which is no mean feat these days. “It took us a long time for us to get a signed lease,” he says. The alternative to all those hurdles is to do as Westerman did, put aside the pride of years as a practicing lawyer and take the test. PROTECTING THE PUBLIC One almost never hears of attorneys at big corporate firms getting busted for practicing law in jurisdictions where they’re not licensed. Litigators make sure they team up with local counsel and get accepted pro hac vice. So why are the big firms taking such pains to toe the line in Virginia? “The attorney who is not licensed in Virginia is certainly going to be prosecuted,” says Bernard DiMuro, former chairman of the Virginia Supreme Court Disciplinary Board and a partner in the Alexandria, Va. firm DiMuro, Ginsberg & Mook. But because of Virginia’s reputation for coming down hard on UPL violators, “there just aren’t many attorneys who are so bold as to try to practice law [without a Virginia license],” he adds. But in an era of Web-based legal services and global law firms, UPL “is a ticking time bomb for firms,” says Stuart Malawer, a professor at George Mason University School of Law who specializes in international trade. Malawer recalls a situation in which he was dealing with a major multinational bank. “They sent some legal letters to Virginia residents and they were trying to extract some sort of concession from them,” he says. My position was that if they did it more than one time, that would open the [bank's] law firm to a UPL charge.” Indeed, Virginia is one of the few jurisdictions that does allow “occasional and incidental” transactional work by non-Virginia attorneys. “If I come down from New York and I’m a hotshot M&A lawyer from Skadden Arps, I wouldn’t bother to call [the bar],” says James McCauley, ethics counsel for the Virginia State Bar. “But they can’t repeatedly and systematically” swoop into the commonwealth to close big deals without concern for UPL complaints. The Virginia Rules of Professional Conduct prohibit the aiding and abetting of UPL, and Virginia lawyers “generally believe that they are required” to notify bar authorities when they encounter attorneys practicing without a Virginia license, says McCauley. There is the ethical impetus, and there is the financial one. Most UPL complaints come in from other attorneys, says McCauley, though he adds that the number from clients has been steadily climbing. Disgruntled clients have a good reason to report nonlicensed lawyers, says Malawer, as Virginia prohibits unlicensed attorneys from collecting legal fees. Still, the idea of prosecuting highly competent lawyers who serve corporations for UPL strikes many as far-fetched. Even former Virginia Bar Counsel Michael Rigsby notes that perhaps there should be some sort of embargo on prosecuting the newbie lawyers in Northern Virginia. “The whole idea of UPL is to protect the public,” Rigsby says. “Where you are dealing with major law firms, I don’t think public protection is an issue at all.” There does appear to be some wiggle room, especially if the firm has a D.C. office nearby. McLean, Va.-based Shaw Pittman partner Jack Lewis, who is known for representing Fairfax-based webMethods Inc., was sworn into the Virginia Bar on April 19, about a year after leaving D.C.’s Tucker Flyer & Lewis. Before he received the official stamp, Lewis says he was practicing in the District. Still, the new kids on the block aren’t about to thumb their noses at the Old Dominion’s rules. “Having gone to school here and worked here, I know [Virginia] is very strong in tradition,” says Wilson Sonsini’s Chaplick. “I had a sense instinctively to play by the rules. I don’t want to be a test case.”

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