Hey, I agree, I didnât see anything wrong
with it, but as I said a colleague raised real serious concerns so I wanted to
at least raise it with you and open a dialogue to see what you thought.
Mark
______________________________________________________________________________
This electronic mail (e-mail) transmission is meant solely for the person(s) to
whom it is addressed. It contains confidential information that may also
be legally privileged. Any copying, dissemination or distribution of the
contents of this e-mail by anyone other than the addressee or his or her agent
for such purposes is strictly prohibited. If you have received this
e-mail in error, please notify me immediately by telephone, facsimile or e-mail
and purge the original and all copies thereof. Thank you.
Mark S. Zaid, Esq.
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 454-2809 direct
(202) 330-5610 fax
www.MarkZaid.com
From: Haytham Faraj
[mailto:haytham@puckettfaraj.com]
Sent: Tuesday, February 08, 2011
5:46 PM
To: 'Mark S. Zaid'; 'Puckett Neal'
Cc: 'Eric S. Montalvo'; 'Debra A
D'Agostino'
Subject: RE: Of Counsel
Relationship - VA Bar Rules
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]
Sent: Tuesday, February 08, 2011
5:33 PM
To: 'Puckett Neal'
Cc: 'Haytham'; 'Eric S. Montalvo';
'Debra A D'Agostino'; mark@markzaid.com
Subject: Of Counsel Relationship -
VA Bar Rules
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
Non-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
June 9, 1988
Foreign
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
August 5, 1985
Letterhead 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
December 14, 2000
- See RPC 7.5(b);LEO 762; LEO
858; LEO 1026;Ut.Eth.Op.96-14;NYCLA Eth.Op.682 (1990); ABA 316 (1967)
- See UPR 9-102(A)(2); UPL 107;
UPL
55.
3.
Landise v. Mauro, 725 A.2d. 445, 447
(1998); UPL
201.
Activities 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
January 22, 2001
ApprovedbyCouncil
June 14, 2001
ApprovedbytheVirginiaSupremeCourt
October 1, 2001
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).
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.
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.
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.
Foreign Attorneys â Scope
of Permissible Practice.
It is not the unauthorized practice of law for a non-Virginia licensed attorney
to do âclient intakesï?
â providing that this involves nothing more than the gathering of factual data.
[UPR Definition (A)]
It is the unauthorized practice of law for a non-Virginia licensed attorney to
render legal advice in Virginia â either on Virginia law or the law
of his home jurisdiction. However, it is permissible for this non-Virginia
attorney to advise a Virginia
attorney who may then render advice to a client if he deems this advice
acceptable. [UPR Definition (A)(1), (B)]
A non-Virginia licensed attorney may render advice and execute cases in Virginia involving
federal law if specifically permitted by federal law. [UPL Op. 55;
UPR 9-102(A)(2)]
An attorney licensed in a foreign country should be referred to and identified
as a lawyer licensed to practice in that foreign country only. [DR 3-104(E);
UPR Definition B]
Committee Opinion
August 14, 1987
Immigration 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
September 8, 1983
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
This electronic mail (e-mail) transmission is meant solely for the person(s) to
whom it is addressed. It contains confidential information that may also
be legally privileged. Any copying, dissemination or distribution of the
contents of this e-mail by anyone other than the addressee or his or her agent
for such purposes is strictly prohibited. If you have received this
e-mail in error, please notify me immediately by telephone, facsimile or e-mail
and purge the original and all copies thereof. Thank you.
Mark S. Zaid, Esq.
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 454-2809 direct
(202) 330-5610 fax