Inquiry is made concerning the ethical propriety of employment of lawyers admitted to practice in other jurisdictions but not admitted to practice in Tennessee.
The issue to be addressed arises from the increasing tendency of lawyers to move about the country and the increasing specialization of the bar. Tennessee lawyers and law firms are, with increased frequency, employing lawyers to work in their offices in Tennessee who have not been admitted in Tennessee. These lawyers may promptly apply for admission, but because of the delays inherent in the admissions process, there may be a period of months between the date of their employment and the date of their actual admission.
Inquiry is made concerning specific circumstances, to-wit:
Tennessee Supreme Court Rule 7, Section 1.01, provides:
“License Required. No person shall engage in the 'practice of law' or the 'law business' in Tennessee, except pursuant to the authority of this Court, as evidenced by a license issued in accordance with this Rule, or in accordance with the provisions of this Rule governing special or limited practice.”
For the limited purpose of this Ethics Opinion only, the practice of law within the jurisdiction of Tennessee by lawyers admitted to practice in other jurisdictions constitutes the unauthorized practice of law, except: (1) When permitted to appear pro hac vice; and (2) when making limited appearances before Federal courts or agencies.
Disciplinary Rule 3-101 of the Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8, and Rule 5.5(b) of the Tennessee Rules of Professional Conduct which become effective March 1, 2003, prohibit a lawyer from aiding a nonlawyer in the unauthorized practice of law, however.
During the interim that the foreign lawyer has an active application pending and under consideration for admission to practice in Tennessee, the specific inquires herein are answered as follows:
As to the “law business,” lawyers unlicensed in Tennessee but who have applied for admission pursuant to Supreme Court rules are permitted to perform other services outside of Court or administrative appearances as set forth above which require the interpretation of Tennessee law or which otherwise constitute the conducting of a law business or the practice of law in Tennessee, including, but not limited to, activities such as the counseling of clients regarding Tennessee law, or the drafting of wills, contracts or other legal documents, as long as such services are conducted under the supervision of a Tennessee licensed lawyer within a Tennessee law firm or Tennessee lawyer employer. The Tennessee law firm or Tennessee lawyer shall be responsible for the ethical and professional obligations associated with the work and/or services undertaken by the unlicensed attorney-employee. This supervision and obligation shall remain in full force and effect from the time of employment through the date that the unlicensed lawyer is admitted to the Tennessee bar and granted a license according to the rules of the Tennessee Supreme Court.
Effective March 1, 2003, employing or supervisory Tennessee lawyers must comply with the specific requirements imposed upon supervisory lawyers by Rule 5.1 of the Rules of Professional Conduct, and the lawyers unlicensed in Tennessee will also be bound by the provisions of Rule 5.2 setting forth the responsibilities of subordinate lawyers.
This 13th day of December, 2002.
Kim A. McMillan, Chair
Michelle A. Benjamin
John W. Robinson, Sr.
APPROVED AND ADOPTED BY THE BOARD