Corporate counsel are limited unless they are licensed in the jurisdiction where their business is located.
I am general counsel to a company that operates in all 50 states. My office is in Pennsylvania and I am licensed in New York and Delaware. Is there anything else I have to do in Pennsylvania?
Being corporate counsel or assistant corporate counsel to a multistate business sometimes creates ethical issues for the general counsel. Surprisingly, some general or business counsel don’t appreciate all the issues, particularly the problem of unauthorized practice of law if they are not licensed in a particular state. There is no exemption for general corporate counsel to engage in the unauthorized practice of law in areas where they are not licensed.
The Pennsylvania Bar Admission Rules have a specific section for the limited admission of in-house corporate counsel. That is found under Rule 302 of the Pennsylvania Bar Admission Rules. That rule, in essence, allows any attorney not a member of the Bar of Pennsylvania, but who is employed by and performs legal services in the commonwealth for a corporation or company or partnership to obtain a limited in-house corporate counsel license in order to provide such legal services if they are performed in Pennsylvania on more than a temporary basis by the lawyer. This license is limited and allows the business counsel or general counsel to provide advice or services to the corporation named in the application. But, the services are limited to giving legal advice to the directors, officers, employees and agents of the business organization with respect to his business affairs, negotiating and documenting all matters for the business organization and representing the business organization in its dealings with an administrative agency or commission if authorized by the rules of that agency or commission.
But, that license will not allow the attorney to represent the business in any case pending before the courts of Pennsylvania. The attorney would have to seek pro hac vice admission to do so. It would also prohibit the general or business counsel from representing or giving advice to shareholders, owners, partners or employees about personal matters. The limited license would also prohibit offering legal services or advice to any third party having dealings with attorney’s employer and, finally, would prohibit offering legal services or advice to the public and for holding oneself out as authorized to offer legal services or advice to the public. There is a subsection that does allow the limited license to participate in pro bono services offered under Legal Aid or state or local bar association projects. But, that has to be done under the supervision of a licensed attorney who is working on the pro bono representation. This limited corporate license will expire if the lawyer’s admission in the state where they were licensed expires or is placed on inactive status or ceases to be employed by the business. This limited license subjects the lawyer to be under the jurisdiction of the Pennsylvania Rules of Disciplinary Enforcement and Pennsylvania Rules of Professional Conduct. Therefore, they can be prosecuted in Pennsylvania by the Office of Disciplinary Counsel.
It should be noted there is also a limited admission for military attorneys who happened to be stationed in Pennsylvania under Rule 303.
This limited corporate law license is not difficult to obtain as long as the corporate lawyer has a law license elsewhere and has a certificate of good standing and fills out the proper paperwork. What is amazing is that some attorneys or assistant counsel don’t take advantage of this and put themselves at risk for the unauthorized practice of law in Pennsylvania. The unauthorized practice of law is prohibited by Pennsylvania Rules of Professional Conduct 5.4 and 5.5 and is a very serious violation. Systematic unauthorized practice of law normally results in a suspension of at least a year and a day, which would require reinstatement which could extend the suspension time period for several years.
Some lawyers have suggested that Pennsylvania would have no jurisdiction over them to discipline them if they didn’t seek the license, because they were not licensed in Pennsylvania. That is a very foolish position to take. Several states, such as Delaware, Maryland, and others, have already held that they have the right to discipline and suspend or disbar a lawyer who is not licensed in their jurisdiction if the lawyer does legal work in their jurisdiction that would warrant serious discipline. Although this writer is not aware of any particular case in Pennsylvania where that has happened, Pennsylvania has granted reciprocal discipline of disbarment to Pennsylvania lawyers who have, for instance, been disbarred in Delaware even though they were not licensed in Delaware. Therefore, any suggestion that one has some immunity for violating Rules of Professional Conduct if they are not admitted in a particular jurisdiction is a very outdated view and could result in serious discipline with resulting reciprocal discipline in the jurisdictions where they are licensed. For the jurisdictional issue, Rule 8.5 of the Rules of Professional Conduct should be reviewed.
But, even with a limited license, general counsel or business counsel are very limited in what they can do as noted above. The counsel cannot sign legal papers or participate in litigation or file garnishment notices or in any way be involved in active litigation in Pennsylvania. The only way limited corporate counsel can do that is to seek full admission in Pennsylvania or file a pro hac vice petition.
Further, corporate counsel should be aware that these type of limitations would apply in most states where they are not licensed. Therefore, giving advice to employees or persons beyond the corporate board and corporate officers could result in unauthorized practice of law charges elsewhere. There is no general national law license and being general corporate counsel to some major corporation does not change the law regarding the unauthorized practice of law in individual states. Many corporate counsel seem to forget that. Further, some corporate counsel make the mistake of allowing their attorney license to go on inactive status, which is now called administrative suspension. That could have some very serious consequences down the line. Many states, like Pennsylvania, require a reinstatement hearing if the inactive status (administrative suspension) is more than three years. That can take several months and can put the lawyer in a difficult position if they were hired as a counsel and then can’t practice because their license is still on administrative suspension.
In conclusion, corporate counsel are limited unless they are licensed in the jurisdiction where their business is located. Otherwise, all corporate counsel should comply with the rules of the jurisdiction where they are located and not engage in any courtroom activities whatsoever. They also must get that limited law license or else their advice to their corporate boards and corporate officers would be considered the unauthorized practice of law.
Practicing law without a sense of legal history is doing a great disservice to the legal profession.
Who is Pennsylvania’s greatest U.S. Supreme Court Justice?
While not truly an ethical question, to be a professional lawyer, one should have a great sense of legal history. Pennsylvania has been not blessed with many U.S. Supreme Court justices. In recent years, Justice Owen Roberts from Pennsylvania served from 1930 to 1945. Justice Gerald Shiras served from 1892 to 1903. Justice Robert Grier served from 1846 to 1870. Justice John Catron served from 1837 to 1865, although he practiced law in Tennessee. Justice George Shris practiced in Pennsylvania. Of course, going way back in history was Justice James Wilson who served from 1789 to 1798. He was a Pennsylvania lawyer, but actually he was born in Scotland. There is also Justice William Strong who served from 1870 to 1880 and he was born in Connecticut, but practiced law in Pennsylvania.
Often forgotten was one of the greatest U.S. Supreme Court justices, Justice Robert Jackson. He was born in Pennsylvania in Warren County. But, his practice in his early years was in upstate New York. From there, he got to know Franklin Roosevelt and later was appointed to various positions, including Solicitor General and Attorney General, by Roosevelt. In 1941, he was appointed to the U.S. Supreme Court. Although he is listed as a New York lawyer, he was born in Pennsylvania. Justice Jackson also served as the chief prosecutor during the Nuremberg Trials of Nazi war criminals.
Justice Jackson had a wonderful way of writing and as Solicitor General in the late 1930s, he was well respected by the justices. It is reported that Justice Louis Brandeis stated he wanted Justice Jackson to serve as Solicitor General forever. Justice Jackson won approximately 40 oral arguments before the U.S. Supreme Court.
His Pennsylvania connection is often forgotten. But, his family had a long history in Warren County, Pennsylvania.
What is very interesting is that there was never a chief justice from Pennsylvania, which is surprising because of Pennsylvania’s excellent reputation for producing lawyers and, of course, because of the University of Pennsylvania Law School and Dickinson School of Law and other old and well-respected legal institutions in Pennsylvania. Pennsylvania’s greatest lawyer, John Graver Johnson was appointed to the U.S. Supreme Court three times by two different presidents in the late 1800s, but turned each appointment down. Although John Johnson performed great legal services and was a tremendous transitional figure in the practice of law from small individual practices to corporate law firms, Johnson would have been a wonderful addition to the U.S. Supreme Court and may have been Pennsylvania’s only chief justice. But, he had no interest in serving on the court. His only interest was to serve on the Philadelphia Bar Association’s Judicial Selection Committee, which he chaired for most of his life.
It is important for lawyers to know legal history and have a sense of the former significant judges and justices. This provides a continuity for the profession. These historical figures also provide role models for the next generation of lawyers to emulate. Practicing law without a sense of legal history is doing a great disservice to the legal profession.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.