Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Tennessee Rules of Professional Conduct encompass the MJP rules in Tennessee (not including rules relating to attorneys licensed in foreign countries). For general information about MJP, please see the MJP General page.
Rule 5.5 provides safe harbor provisions for legal practices that out-of-state attorneys may perform in Tennessee without engaging in the unauthorized practice of law. Rule 8.5 recognizes that attorneys practicing in more than one jurisdiction will likely be subject to conflicting admission rules, court rules, or rules of professional conduct. Rule 8.5 attempts to minimize such conflicts and the uncertainty regarding which rules are applicable by establishing the set of rules governing the attorney’s conduct. Attorneys should consult both of the MJP rules, as well as the other Tennessee admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
Rule 5.5, particularly 5.5(c)-(h), and the applicable comments allow active attorneys licensed in other jurisdictions who regularly practice law, and who are not disbarred or suspended from the practice of law, to practice in Tennessee on a temporary basis and to practice as Tennessee House Counsel. Attorneys must be on active status. (Comment 7).
Tennessee’s MJP Rule 5.5 is the ABA Model Rule 5.5 with additional provisions allowing house counsel attorneys to provide pro bono legal services. The MJP rule also requires obtaining the client’s informed consent and submission to personal jurisdiction in Tennessee.
Rule 5.5 generally prohibits attorneys from practicing law in a jurisdiction in a way that would violate the regulation of the legal profession in that jurisdiction. Out-of-state attorneys cannot establish an office or other systematic and continuous presence in Tennessee for the practice of law and cannot represent or hold himself or herself out to the public as being admitted to practice in Tennessee.
Comment 4 states presence may be systematic and continuous even if the attorney is not physically present in Tennessee.
For practice under 5.5(c) (Temporary Practice) or 5.5(d) (House Counsel and Practice Authorized by Law), attorneys must advise the client that the attorney is not admitted to practice in Tennessee and must obtain the client’s informed consent for such representation. (5.5(f)). Attorneys are deemed to have submitted himself or herself to personal jurisdiction in Tennessee for claims arising out of the attorney’s actions in providing such services in Tennessee. (5.5(g)). The following comment also applies:
Comment 21 does not authorize communications that advertise legal services to prospective clients in Tennessee by attorneys admitted in other jurisdictions.
Comment 6 states there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Tennessee. Services may be “temporary” even though the attorney provides services in Tennessee on a recurring basis or for an extended period of time. An example includes when the attorney is representing a client in a single lengthy negotiation or litigation.
The temporary practices include:
Comment 9 states that to the extent that a Tennessee court rule or other law requires an out-of-state attorney to obtain pro hac vice admission before appearing before a tribunal, the attorney must obtain that authority.
Comment 10 provides examples such as meeting with the client, interviewing potential witnesses, and reviewing documents. Similarly, out-of-state attorneys may engage in temporary conduct with pending litigation in another jurisdiction where the attorney reasonably expects to be authorized to appear. This conduct includes taking depositions in Tennessee.
Comment 11 permits conduct for other attorneys who are associated with the attorney but who are not expected to appear. For example, subordinate attorneys may conduct research, review documents, and attend meetings with witnesses.
Comment 12 requires attorneys to obtain pro hac vice admission for court-annexed arbitrations, mediations, or if court rules or law otherwise require.
Comment 14 provides factors for determining when services arise out of or reasonably relate to the attorney’s home jurisdiction practice. The factors include situations where the attorney may have previously represented the client, or the client was a resident in, or has substantial contacts with, the jurisdiction where the attorney is admitted.
The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the attorney’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of the attorney’s home jurisdiction. The client’s activities or the legal issues may also involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their attorney in assessing the relative merits of each. In addition, the services may draw on the attorney’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
Comment 13 states that these services include both legal services and services that non-attorneys may perform but that are considered the practice of law when performed by attorneys.
Comment 14 (above) also applies to (c)(4).
The Tennessee MJP rule provides the authority for the Tennessee House Counsel Rules. Tennessee’s MJP rule exempts house counsel attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and continuous presence in Tennessee.
Attorneys may provide legal services to the attorney’s employer or its organizational affiliates so long as the legal services are not those for which a forum requires Tennessee Pro Hac Vice admission. (5.5(d)(1)).
Comment 16 states that the rule does not authorize the provision of personal legal services to the employer’s officers or employees. The rule applies to in-house corporate attorneys, government attorneys, and others who are employed to render legal services to the employer.
Rule 5.5(e) allows house counsel attorneys to provide pro bono legal services for no fee through a qualified legal services provider, as defined by the Pro Bono rules. Attorneys must obtain Pro Hac Vice Admission for any legal services involving representation before a court or tribunal. The admission fee is waived. A qualified legal services provider may reimburse the house attorney for actual expenses incurred while rendering legal services under the pro bono exception, and they are entitled to receive court awarded attorney’s fees for the pro bono work.
Attorneys may also render services in Tennessee authorized by Tennessee or federal law. (5.5(d)(2)). Practice under this MJP rule exempts attorneys from the prohibition against establishing an office or other systematic and continuous presence in Tennessee.
Comment 18 includes statutes, court rules, executive regulations, or judicial precedents.
Tennessee’s Rule 8.5 is the ABA Model Rule 8.5, except Tennessee has not adopted Comment 5 of the model rule relating to the predominant effect of a lawyer’s conduct and the lawyer’s reasonable belief of where that effect will occur.
Disciplinary Authority. A lawyer admitted to practice in Tennessee is subject to the disciplinary authority of Tennessee, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Tennessee is also subject to the disciplinary authority of Tennessee if the lawyer provides or offers to provide any legal services in Tennessee. A lawyer may be subject to the disciplinary authority of both Tennessee and another jurisdiction for the same conduct. (8.5(a)).
Comment 1 states that reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purpose of the rule.
Choice of Law. The Tennessee Rules of Professional Conduct are applied as follows:
For conduct in connection with a matter pending before a tribunal, the applicable rules are those of the jurisdiction where the tribunal sits, unless the rules of the tribunal provide otherwise. (8.5(b)(1)).
For any other conduct, the applicable rules are those of the jurisdiction where the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction will be applied to the conduct. (8.5(b)(2)).
As discussed above, Comment 2 states that a lawyer may be potentially subject to more than one set of rules of professional conduct and those rules may impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction(s) where the lawyer is licensed. The lawyer’s conduct may also involve significant contacts with more than one jurisdiction.
Comment 3 states that 8.5(b) seeks to resolve the potential conflicts, because minimizing conflicts and uncertainty is in the best interests of the client, profession, and the regulating authorities. The MJP rules take the approach of providing that any particular conduct of a lawyer should be subject to only one set of rules of professional conduct, and making the determination of which set of rules applies to a particular conduct as straightforward as possible.
Comment 4 states that all other conduct not pending before a tribunal, including conduct in anticipation of a proceeding not yet pending before a tribunal, subjects the lawyer to (b)(2). For conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits, or another jurisdiction.
Comment 5 states that if two admitting jurisdictions were to proceed against a lawyer for the same conduct, the jurisdictions should, applying this rule, identify the same governing ethics rules. The jurisdictions should take all appropriate steps to see that they apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.
Comment 6 states that the choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties, or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.