Fairly regularly, lawyers move to Georgia to begin new jobs as in-house counsel. Certain questions naturally will arise. To accept an in-house position and provide legal services in Georgia, does a lawyer have to become licensed here? What are the consequences, if any, of the in-house lawyer not having a Georgia license? What if the lawyer does not have an active license anywhere?
Before taking that in-house position in Georgia, an out-of-state lawyer should know the answers to those questions. Some possible consequences of providing legal services as an unlicensed in-house lawyer include criminal sanction for unauthorized practice of law, possible loss of the ability of the client to assert the attorney-client privilege, or reprimand, suspension or disbarment of the attorney.
Under certain circumstances, Georgia allows in-house counsel to perform legal services for their employers, even if they are not licensed in the state. The rationale for this license exception is that a lawyer’s ability to represent her organizational client generally serves the interests of the employer and does not create an unreasonable risk to the client because it is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work.
Specifically, Georgia Rule of Professional Conduct 5.5(d) allows an in-house lawyer not admitted to practice law in Georgia to provide legal services for her employer if the following conditions are met:
- The lawyer must be authorized to practice law in a state or territory of the United States or the District of Columbia;
- The lawyer must not be disbarred or suspended from practice in any jurisdiction;
- The legal services are being provided to the lawyer’s employer or its organizational affiliates; and
- The legal services being provided are not services for which a particular forum requires pro hac vice admission.
To fall under the Rule 5.5(d) license exception, in-house counsel must be authorized to practice in at least one jurisdiction. That means they cannot take inactive status, and they must pay their bar dues and complete their annual CLE requirements. Any lapse, unintentional or not, will open the lawyer up to the unauthorized practice of law.
An in-house counsel in Pennsylvania learned this the hard way. In that case, the in-house lawyer failed to maintain her annual CLE requirements and failed to pay her annual bar dues. The Pennsylvania bar initially placed her on inactive status for failing to meet the annual CLE requirements and later changed her status from inactive to administratively suspended. While on inactive status and administrative suspension, the in-house attorney was a “formerly admitted attorney” and was no longer authorized to practice law. Thus, during that time period, she engaged in the unauthorized practice of law. She was ultimately suspended from the practice of law for six months.
While Rule 5.5(d) allows an unadmitted in-house lawyer to provide legal services to its employer in Georgia, it explicitly does not allow the lawyer to provide personal legal services to the employer’s officers or employees. Even without this express prohibition, conflicts would often prevent such representation anyway.
On occasion, an in-house counsel may be tasked with representing his corporate employer in litigation or at a deposition. If not actively licensed in Georgia, then the attorney cannot represent the client unless and until securing pro hac vice admission in the particular forum.
Some jurisdictions require an out-of-state licensed in-house lawyer to register with their employer’s state bar association, but Georgia currently has no such rule. That said, in-house lawyers who provide legal services for employers here are still subject to the disciplinary authority of the State Bar of Georgia, so they should be familiar with the ethics rules and opinions here. See Ga. R. Prof’l Conduct 8.5(a).
If you are an out-of-state lawyer taking an in-house position with a company here in Georgia, remember to:
- Maintain an active license somewhere;
- Only provide legal services to your employer client;
- Know and comply with the Georgia ethics rules.
Jonathan E. Hawkins is a partner in the Atlanta firm of Krevolin & Horst. He represents clients in numerous business sectors in high-stakes complex commercial litigation and serves as outside general, business and ethics counsel to lawyers and law firms.