In-house counsel in the U.S. are moving from state to state now more than ever. If you are going to work as in-house counsel in a state where you are not licensed, what do you need to consider?
It depends on the state where you will be working.
- Because licensing rules vary from state to state, you could find yourself running afoul of Unauthorized Practice of Law (“UPL”) rules if you’re unaware of the differences.
- A great place to start is ACC’s recently updated Right to Practice Rules in the USA. In it, you will find a list of all 50 states and the District of Columbia with a brief summary of the rules for each state and a link to the bar association or attorney admissions office and contact information.
The ABA’s Model UPL Rules and the In-house Exception
The ABA’s Model Rules of Professional Conduct, Rule 5.5 provides the model UPL rules that require a license to practice in a state, but also contains an exception for in-house counsel found in Rule 5.5(d):
Rule 5.5(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
- are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
- are services that the lawyer is authorized by federal or other law or rule to provide in the jurisdiction.
Under the model UPL rule in-house counsel exception, if you are licensed in any U.S. state you should be able to work in any other state as in-house counsel. All of the states, except for Hawaii and Texas (see below), have adopted some form of the model exception. A majority of states, however, require the additional step of registering with the state bar association.
State Requirements to Register
Let’s start with the states that do not require registration. As long as you are currently licensed to practice law in at least one state and you are in good standing, you should be able to work as in-house counsel in any of the following 14 jurisdictions that have no registration requirements: Alaska, Arkansas, District of Columbia, Georgia, Maine, Maryland, Montana, New Hampshire, New Mexico, North Carolina, South Dakota, Vermont, West Virginia, and Wyoming.
There are, however, 35 states that require in-house counsel licensed in another jurisdiction to register, pay a fee of up to $1,500 and may require additional steps (similar to getting licensed in that state) such as CLE obligations, character and fitness investigations or fingerprinting:
Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Virginia, Washington, and Wisconsin
Hawaii has not adopted the full model rule exception for in-house counsel and only allows counsel not admitted in the state to work in Hawaii remotely for other states. See Hawai’i Rules of Professional Conduct, Rule 5.5 Comment .
Texas has not adopted the in-house exception that would allow in-house counsel to work without admission. (The Texas State Bar has advised that in-house counsel cannot work without admission, but suggested we contact the Texas Board of Bar Examiners. We will update this article when we hear back.) Texas does allow in-house counsel licensed only in other states to apply as Foreign Legal Consultants under Texas Supreme Court Rule XIV.
Subject to Rules of the State Where You Practice
All of the states, except for Hawaii, Texas and the District of Columbia, have enacted a version of ABA Model Rule 8.5 that subjects in-house counsel practicing in the state without that state’s license to the disciplinary authority of the state. The text of the model rule follows (emphasis added):
Rule 8.5 (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
As a result, failure to register as in-house counsel in a state requiring such registration can result in disciplinary proceedings from both the state where you work and the state where you are licensed.
Pro-hac Vice Admission Requirements
You may have noticed that ABA Model Rule 5.5(d) allows in-house counsel to provide legal services that “are not services for which the forum requires pro hac vice admission.” If you need to appear in court on behalf of your employer, you should review the pro hac vice requirements in your state. ACC’s “Right to Practice Rules in the USA” provides links to each state’s requirements.
- Use ACC’s Right to Practice Rules in the USA to help avoid UPL violations when working in a state where you are not licensed. A violation of UPL rules could result in state disciplinary proceedings, loss of attorney-client privilege and reputation risks, which we obviously want to avoid.
- ACC’s Right to Practice guide is a great first step in determining the rules for in-house counsel to practice in a jurisdiction. But always remember that you should contact the state bar or court system for definitive answers. When there are gray areas, you can always contact your licensing jurisdiction’s ethics counsel if you are not sure how the rules apply in your specific circumstances.