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Just four months after it reopened its inquiry, a Virginia Bar task force appears no closer to resolving a controversy over its proposal to require all in-house counsel in Virginia to become members of the State Bar. The task force, responding to calls for more debate, convened a July 24 meeting at the Tysons Corner, Va., office of Williams Mullen. But no decision was made on the status of the proposal, and another meeting was scheduled for Aug. 27. Under the task force’s proposal, all in-house attorneys working in Virginia would have to become dues-paying members subject to annual legal education classes, background checks, an ethics exam and a professionalism course. At the meeting, McGuireWoods partner Richard Cullen presented a so-called Part B to that proposal. Under his plan, in-house counsel licensed elsewhere would only have to register with the Virginia Bar, not actually join. Cullen has actively lobbied the task force and state legislators for amendments to the original draft of the proposal on behalf of client Verizon. While he helped persuade the task force to reopen its deliberations, his proposal is considered unlikely to come to fruition. “I think there’s a strong preference to come up with rules for everybody, and not have a Part A and Part B,” says Thomas Edmonds, executive director of the Virginia Bar. “That seemed to be the tenor of the discussions.” That is somewhat disappointing news for Cullen, who had hoped to craft a plan that would address the Bar’s desire to police the booming numbers of corporate attorneys in the state, while still giving in-house attorneys the option of becoming Bar members. Virginia does not now require in-house counsel to join the State Bar, unlike the majority of states. In-house attorneys who opt for Part B, explained Cullen at the meeting, “would be subject to the police power of the state,” but would forfeit the right to do things such as represent their employers in a Virginia courtroom. At the same time, attorneys who opted for Part A — essentially, the task force’s original proposal — and subjected themselves to all of the Bar’s requirements, could appear in court, and after the requisite years of practice, could waive into the Virginia State Bar without taking the bar examination. Cullen said that Verizon has “45 or 50 lawyers in Virginia, most of whom are members of another bar,” and that he was “concerned about the breadth of the rule and the impact on [those] lawyers.” Indeed, most lawyers attending last month’s meeting were concerned about the impact of the rule. “It’s about economics,” said one speaker. Attorneys would have to “go through a lot of hurdles to keep [their] job. It puts a lot of disruptions in the lives of people.” Concerns were also raised about the execution of the proposed rule. At present, in-house counsel, regardless of the number of years they have worked as attorneys, cannot waive into the Virginia Bar because their work is not considered to be the practice of law. The state came up with that approach to avoid unauthorized practice of law charges against attorneys licensed out of state. But the outcome has prevented experienced attorneys from waiving in, even those who feel they have met the five-year practice requirement. Since in-house counsel would become members of the Bar, the proposal would fix that — but only going forward. “I have 15 years of practice, and I can’t use any of them to waive in, even though I’m an active member of three other bars,” said one speaker who called for a retroactivity clause, as did Julie Strauss, in-house attorney for Vienna, Va.-based Feld Entertainment Inc. While Part B may not make the cut, changes to the original proposal appear probable. “It is still very much a work in progress,” said the task force’s chair, W. Scott Street III, at the meeting. Street is a partner at Richmond, Va.’s Williams Mullen. In fact, the task force and the State Bar have remained open to suggestions. In response to a flood of late-filed comments in the spring, the Bar pulled back the original proposal for further consideration just before it was supposed to be sent to the Virginia Supreme Court for ratification. The hope was that the proposal could be sent back to the Bar council by its June meeting, since the council has to approve the proposal before it goes to the supreme court. But the task force decided not to rush. “We talked about a lot of potential modifications, but we didn’t reach any decision” at the June meeting, Street said last month. The Aug. 27 public meeting of the task force will be held at 10 a.m. at the Virginia State Bar offices in Richmond. Edmonds hopes the task force will come to a final decision at the meeting, but concedes that may not happen. If a final decision is reached, the proposal could be submitted at the Bar council’s next meeting in October. Part of the delay may be attributable to the task force possibly trying to rewrite — in a matter of months — a rule that it took a year to draft. The task force, says Edmonds, wants to create “one streamlined goal that meets most of the objections and concerns.” Despite the odds against integrating the Part B suggestion into the rule, Cullen remains cautiously optimistic that the final version of the rule will appease Virginia’s in-house world. “It certainly could work if, in fact, they address the concerns of the overwhelming number of people who objected to the rule as drafted,” says Cullen. “We’ll have to wait and see.”

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