I'll double check the rules with regard to how our letterhead should appear. As of right now, our of counsel attorneys do not appear on the letterhead, so Mark - you should be fine. From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Why canât you be of counsel for security clearances and military cases. None of which have anything to do with anal retentive VA. Iâm not even licensed and Iâm a partner. From: Mark S. Zaid [mailto:mark@markzaid.com] Neal et al. â A colleague of mine raised a concern with me yesterday over whether I am conducting the unauthorized practice of law by serving as Of Counsel to a Virginia based law firm when I am not licensed in the Commonwealth. My initial reaction was that I did not see any problem with it as I am simply Of Counsel but knowing how anal Virginia is I wonder whether you explored this as an issue, particularly since I know several of your firm members and other Of Counsels are also not licensed in Virginia. The only time I have ever appeared before EDVA is with approved local counsel (primarily, if not exclusively, through Neal). Everything else I do is federal based and authorized, such as before DOHA or EEOC, or internal to an agency arising out of my DC, NY, MD or CT practices. In any event, as a precaution, I do think you might want to make our bar affiliations more prominent as well as very clearly indicate that we, for whom this is applicable, are not licensed in Virginia. The same definitely applies for your letterhead (and I am not aware of whether I am listed there or not). I identified the following potentially relevant VA ethics opinions for your review (of course there may be others not listed). Let me know what you think. Mark VIRGINIA UPL OPINION 122 - http://www.vsb.org/site/regulation/virginia-upl-opinion-122Non-Virginia Lawyer Rendering Advice to Clients Residing in Virginia on Matters Not Concerning Virginia Law. You posed the question as to whether it would be improper for you, as a non-Virginia lawyer, to render advice in Pennsylvania to clients residing in Virginia on matters not concerning Virginia law. It is the opinion of the Committee that it is not improper for you to render such services. In fact, this Committee would not have jurisdiction over any activity performed by you outside the Commonwealth of Virginia. Committee Opinion VIRGINIA UPL OPINION 84 - http://www.vsb.org/site/regulation/virginia-upl-opinion-84Foreign Attorney in Virginia Practice t is the unauthorized practice of law for a non-Virginia licensed attorney to open an office in Virginia without local counsel even where clients are out-of-state and questions are limited to federal administrative and out-of-state corporate law. Committee Opinion VIRGINIA UPL OPINION 196 - http://www.vsb.org/site/regulation/virginia-upl-opinion-196Letterhead Designation By A Foreign Attorney in a Virginia Law Office. This opinion addresses the issue of a foreign attorney (i.e., a licensed attorney not admitted in Virginia) who is âpracticing lawï? out of a Virginia law office, and what must be denoted on the letterhead this attorney will be using. The appropriate and controlling Virginia Unauthorized Practice Rule is 1-101 (B)(4) which, in pertinent part, precludes one from holding himself or herself out to another as qualified or authorized to practice law in the Commonwealth of Virginia. The location of the practice and the position held as an attorney creates the appearance that the attorney is licensed to practice law in the Commonwealth of Virginia. Thus, the committee is of the opinion that the attorneyâs limitations to practice law must be denoted on the letterhead to avoid this appearance. This could be done by either stating on the letterhead that the attorney is ânot licensed in Virginiaï? or denoting that the attorney is âonly licensed in a certain state.ï? [1] In addition, this could be accomplished if the attorney practiced in a limited area of federal law that by rule, regulation or statute did not require Virginia State Bar membership. The attorney would need to note that the practice area is limited to that area on any letterhead. [2] This limitation satisfies the rule. Appropriate letterhead designation does not insulate a person who is in fact engaged in the unauthorized practice of law. [3] Committee Opinion
3. Landise v. Mauro, 725 A.2d. 445, 447 (1998); UPL 201. VIRGINIA UPL OPINION 201 - http://www.vsb.org/site/regulation/virginia-upl-opinion-201Activities of Attorneys Not Licensed to Practice Law in Virginia and Working in the Virginia Office of a Multijurisdictional Law Firm. Your inquiry concerns a multi-jurisdictional law firm and whether attorneys practicing in the firmâs Virginia office, who are not licensed to practice law in Virginia, are permitted to perform certain activities. You have asked the committee to opine as to whether it would be the unauthorized practice of law in Virginia for those non-Virginia attorneys to: 1. Engage in the practice of law when the matter concerns the law of the jurisdiction where the attorney is licensed to practice. 2. Provide legal representation in matters involving federal law. 3. Meet with and advise clients, who are not Virginia residents, in matters which do not concern Virginia law. 4. Provide legal services concerning Virginia law when in association or supervised by a Virginia-licensed attorney. The Committee considered your inquiry at its December 14 meeting and has directed me to transmit its conclusions to you. In regard to your first inquiry, the committee has recently opined that a foreign attorney (i.e., a licensed attorney not admitted in Virginia) may advise a client in Virginia on matters involving the law of the jurisdiction in which the foreign attorney is admitted to practice. UPL Op. 195 (2000). Prior opinions concluding that such activity is unauthorized practice have been overruled. [1] However, any law firm stationery or other public communications identifying the lawyer with the Virginia office must indicate that the lawyer is either not admitted in Virginia or that the lawyer is admitted only in those states where he or she is admitted to practice. UPL Op. 196 (2000). As to your second inquiry concerning matters involving federal law, a foreign attorney may advise and prepare legal documents for a Virginia client in Virginia on such matters, assuming that the foreign attorney is admitted to practice before that federal court. [2] Such advice and document preparation may be provided only to the extent that the federal matter is not impacted by Virginia law and if Virginia legal issues are not involved. UPL Op. 158 (1996). A non-Virginia licensed attorney may also be authorized by federal law to represent persons before a federal administrative agency and may therefore give advice to and prepare legal instruments for such clients in the regular course and within the scope of practice authorized by such federal agency. UPR 9-102. The committee has previously opined that it is not the unauthorized practice of law for an attorney, not licensed in the Commonwealth of Virginia, to maintain an office in Virginia for a practice limited exclusively to matters before the United States Immigration and Naturalization Service. UPL Op. 55 (1983). However, such attorneys must indicate on their letterhead stationery and other public communications that their practice is limited exclusively to practice before that agency. Id. See also UPL Op. 196 (2000). Therefore, an attorney in your multi-jurisdictional law firm need not be admitted to the Virginia State Bar to represent clients in Virginia on matters involving federal law as described above. However, any law firm letterhead stationery or other public communications identifying such lawyer as practicing in the Virginia office must denote the limitation on that lawyerÃs practice. UPL Op. 196 (2000). As to your third inquiry, the committee has previously opined that it would constitute the unauthorized practice of law for a foreign attorney to advise any client in Virginia on matters that involve law which is neither federal law nor the law of a jurisdiction in which the foreign attorney is authorized to practice law. UPL Op. 158 (1996). Therefore, a non-Virginia licensed attorney practicing in the Virginia office of a multi-jurisdictional law firm cannot meet with clients in Virginia to give legal advice involving the application of the law of a jurisdiction in which the attorney is not admitted to practice. Finally, in response to your fourth inquiry, A foreign attorney is regarded as a ânon-lawyerï? for purposes of the unauthorized practice of law rules. Va. S. Ct. R., pt. 6, Â I (C). [3] Except as permitted under the cited rule, [4] a foreign attorney, although admitted to and in good standing in the bar of his home jurisdiction, may not advise or prepare legal documents for a Virginia client in Virginia on matters involving Virginia law. The foreign attorney may give advice to and prepare legal instruments for a Virginia lawyer who may then decide whether such work product is acceptable for the client. UPL Op. 107 (1987). Therefore, a non-Virginia licensed attorney may provide legal services concerning Virginia law when directly supervised by a Virginia-licensed attorney if the attorney-client relationship remains between the Virginia attorney and the client. CommitteeOpinion ApprovedbyCouncil ApprovedbytheVirginiaSupremeCourt [1] UPL Op. 100 prohibited a D.C. attorney, who desired to move his practice to Virginia, from conducting a practice involving federal legislative, governmental and advisory matters, none of which involved the application of Virginia law. UPL Op. 107 declared that it is the unauthorized practice of law for a non-Virginia attorney to render legal advice in Virginia even on the law of his home jurisdiction. Both opinions were overruled by UPL Op. 158 (1996). See also UPL Op. 195 (2000). [2] A foreign attorney must be careful, however, to observe the local rules of the federal courts sitting in Virginia, which require that an attorney either be a member of the Virginia State Bar, or be admitted on motion, pro hac vice, in association with an attorney admitted to practice in the Virginia federal courts. See Local Rule 83.1 of the United States District Court for Eastern District of Virginia; Local Rule 3 of the United States District Court for the Western District of Virginia. Not all federal courts require attorneys to be admitted to practice in the state in which they sit. Therefore, it is possible for a foreign attorney in Virginia to advise a Virginia client on matters pending in a federal court outside of Virginia, if the foreign attorney is admitted to practice in that federal court. [3] The term ânon-lawyerï? means any person, firm, association or corporation not duly licensed or authorized to practice law in the Commonwealth of Virginia. However, the term ânon-lawyerï? shall not include foreign attorneys who provide legal advice or services in Virginia to clients under the following restrictions and qualifications: 1. Such foreign attorney must be admitted to practice and in good standing in any state in the United States; and 2. The services provided must be on an occasional basis only and incidental to representation of a client whom the attorney represents elsewhere; and 3. The client must be informed that the attorney is not admitted in Virginia. A lawyer who provides services not authorized under this rule must associate with an attorney authorized to practice in Virginia. Nothing herein shall be deemed to overrule or contradict the requirements of Rules of this Court regarding foreign attorneys admitted to practice in the courts of the Commonwealth of Virginia including the association of counsel admitted to practice before the courts of this Commonwealth. [4] The limited âtransactional lawyerï? exception for foreign attorneys in Va. S. Ct. R., pt. 6, Â I (C) does not apply to the facts in this opinion because the foreign attorney is practicing regularly in a Virginia law office and not âincidentallyï? and âoccasionallyï? as contemplated by the cited rule. VIRGINIA UPL OPINION 107 - http://www.vsb.org/site/regulation/virginia-upl-opinion-107Foreign Attorneys â Scope of Permissible Practice. VIRGINIA UPL OPINION 55 - http://www.vsb.org/site/regulation/virginia-upl-opinion-55Immigration Law. It is not the unauthorized practice of law for an attorney, not licensed in the Commonwealth of Virginia, to maintain an office in Virginia for a practice limited exclusively to United States Immigration and Nationalization matters. See Rule 6.1 - 9 of the Rules of the Supreme Court of Virginia. With regard to the attorneyâs stationary, the UPL Committee is of the opinion that so long as the descriptive limitations with regard to the extent of the practice are contained on the letterhead, the letterhead is appropriate. Committee Opinion ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ www.MarkZaid.com |