Board of Professional Responsibility

 

2002-F-91(b) - Vacated*

 

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 2002-F-91(b)

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:

1. Must such unadmitted lawyers function only under the direct supervision of licensed Tennessee attorneys?
2. Must they be identified and function as clerks?
3. Can their names appear as attorneys on firm letterheads?
4. Does a reference such as "admitted in Texas" suffice, especially when the firm has no offices in "Texas"?
5. May their names appear on building and other directories?
6. In general, what precautions, if any, must the employing firm or lawyer take to assure that no violation of the prohibitions against unauthorized practice occurs?

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:

1. The unadmitted lawyers must function under the direct supervision of licensed Tennessee attorneys when appearing as counsel in the trial and appellate courts of Tennessee pro hac vice in accordance with Tennessee Supreme Court Rule 19. As to Federal court or agency practice, such unadmitted lawyers should obtain the answer to this question from the rules of the respective Federal courts and agencies in Tennessee before which such lawyers desire to practice.
2. They are not required to be identified and function as clerks.
3. Their names may appear on firm letterheads; provided,
4. There is reference or designation on the letterhead that they are admitted only in the jurisdictions where they are licensed.
5. Their names may appear on advertisements, buildings or building directories as long as there are also references or designations on the advertisements, building signs or directories easily readable by the general public that they are admitted only in the jurisdictions where they are licensed.
6. As to the unadmitted lawyers’ appearances as counsel in the trial and appellate courts of Tennessee pro hac vice, the employing law firm or lawyer shall be responsible for the ethical and professional obligations of the unadmitted foreign attorney and shall sign all pleadings, motions, briefs, etc. and the Tennessee lawyer shall personally appear for all court proceedings, unless excused by the court in which the case is pending. As to Federal court or agency practice, the employing law firm or lawyer should obtain the answer to this question from the rules of the respective Federal courts and agencies in Tennessee before which such unadmitted lawyers desire to appear.

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.

ETHICS COMMITTEE:

Kim A. McMillan, Chair
Michelle A. Benjamin
John W. Robinson, Sr.

APPROVED AND ADOPTED BY THE BOARD