Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the Virginia Rules of Professional Conduct encompass the MJP rules in Virginia (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 harbors for legal practices that out-of-state attorneys may perform in Virginia 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 Virginia admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
Rule 5.5 and the applicable comments allow Foreign Lawyers to practice law in Virginia on a temporary basis without engaging in the unauthorized practice of law. A “Foreign Lawyer” is not licensed in Virginia but is licensed in a state or territory of the United States or the District of Columbia, or a foreign nation, and is not disbarred or suspended from practice in any jurisdiction. Attorneys must be on active status. (Comment 7).
Foreign legal consultants authorized to practice under Rule 1A:7 and Virginia Corporate Counsel Registrants practicing under Part II of Rule 1A:5 are not authorized to practice under the MJP rule. (5.5(d)(5)). Attorneys practicing under a Virginia Corporate Counsel Certificate are eligible.
Virginia’s MJP Rule 5.5 is not the ABA Model Rule 5.5. Virginia’s MJP rule does not provide rules that mirror the ABA model rule for house counsel practice or practice authorized by Virginia or federal law, but it does allow practice limited to areas where state or federal laws do not require admission to the Virginia State Bar. This includes tax attorneys, patent attorneys, and immigration attorneys. Virginia’s MJP rules also contain a requirement to inform the client and third parties regarding the attorney’s licensing status and address.
Rule 5.5(c) generally prohibits lawyers from practicing law in a jurisdiction in a way that would violate the regulation of the legal profession in that jurisdiction. Rule 5.5(d)(2) prevents out-of-state attorneys from establishing an office or other systematic and continuous presence in Virginia for the practice of law, even if the attorney is not physically present in Virginia. The rule also prohibits Foreign Lawyers from representing or holding himself of herself out to the public as being admitted to practice in Virginia.
Comment 2 states that 5.5(c) applies to Virginia lawyers and those admitted Pro Hac Vice.
Comment 4 states that presence may be systematic and continuous even if the Foreign Lawyer is not physically present in Virginia. Such “non-physical” presence includes, but is not limited to, the regular interaction with Virginia residents for delivery of legal services in Virginia through the exchange of information over the Internet or other means.
Foreign Lawyers may establish an office or other systematic and continuous presence in Virginia if the practice is limited to areas which state or federal law do not require admission to the Virginia State Bar. Examples include practice that is limited to federal tax practice before the IRS and Tax Court, patent law before the Patent and Trademark Office, or immigration law. Foreign legal consultants may become authorized to practice in Virginia as a foreign legal consultant and may establish an office or other systematic and continued presence in Virginia.
Comment 19 and RPC 8.5(a) subject attorneys to the disciplinary authority of Virginia for practice under the MJP rule.
Comment 21 states 5.5(d)(4) does not authorize communications that advertise legal services to prospective clients in Virginia by Foreign Lawyers.
Rule 5.5(d)(3) mandates that Foreign Lawyers must inform the client and interested third parties in writing that:
Comment 6 states there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in Virginia. Services may be “temporary” even though the attorney provides services in Virginia 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.
After informing the client as required, Foreign Lawyers may provide legal services in Virginia on a temporary and occasional basis, which include:
Comment 9 states that to the extent that a Virginia 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 in connection with pending litigation in another jurisdiction where the attorney reasonably expects to be authorized to appear. This conduct includes taking depositions in Virginia.
ABA Comment 11 has not been adopted. The ABA Comment allowed conduct for other attorneys who are associated with the attorney but who are not expected to appear.
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 with 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 12 requires attorneys to obtain pro hac vice admission for court-annexed arbitrations, mediations, or if court rules or law otherwise require.
Comment 14 (above) also applies to (d)(4)(iii).
Comment 13 states this rule covers practice that is not within (d)(4)(ii) and (d)(4)(iii). 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. The rule applies to attorneys licensed only in a foreign nation.
Comment 14 (above) also applies to (d)(4)(iv).
Comment 14a recognizes that a Foreign Lawyer may provide legal services when the service provided are governed by international law or the law of a foreign jurisdiction where the attorney is admitted.
Disciplinary Authority. A lawyer admitted to practice in Virginia is subject to the disciplinary authority of Virginia, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in Virginia is also subject to the disciplinary authority of Virginia if the lawyer provides, holds himself out as providing, or offers to provide legal services in Virginia. By doing so, the lawyer consent to the appointment of the Clerk of the Supreme Court of Virginia as the agent for purposes of notices of any disciplinary action by the Virginia State Bar. A lawyer may be subject to the disciplinary authority of both Virginia and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The Virginia Rules of Professional Conduct are applied as follows:
For conduct in connection with a proceeding in a court, agency or other tribunal before which a lawyer appears, the applicable rules are those of the jurisdiction where the court, agency, or other tribunal sits, unless the rules of the court, agency, or other tribunal provide otherwise. (8.5(b)(1)).
For any other conduct, the rules of the jurisdiction where the lawyer’s conduct occurred. (8.5(b)(2)).
Notwithstanding subparagraphs (b)(1) and (b)(2), for conduct in the course of providing, holding out as providing, or offering to provide legal services in Virginia, the Virginia Rules of Professional Conduct apply.
Comment 8 states that 8.5(b) seeks to resolve conflicts that may arise when a lawyer is subject to the rules of more than one jurisdiction and those rules conflict. A lawyer admitted in only one jurisdiction may also be subject to the rules of another jurisdiction where he or she is not admitted to practice for conduct occurring in the course of providing, holding himself out as providing, or offering to provide legal services in the non-admitting jurisdiction. Also, a lawyer admitted in one jurisdiction may be subject to the rules of another jurisdiction if he or she appears before a court, agency, or other tribunal in that jurisdiction.
Comment 9 states that if the lawyer appears before a court, agency, or other tribunal in another jurisdiction, 8.5(b)(1) applies the law of the jurisdiction where the court, agency, or other tribunal sits. In some instances, the court, agency, or other tribunal may have its own lawyer conduct rules and disciplinary authority. For example, the United States Patent and Trademark Office (“PTO”), through the Office of Enrollment and Discipline, enforces its own rules of conduct and disciplines practitioners under its own procedures. A lawyer admitted in Virginia who engages in misconduct in connection with practice before the PTO is subject to the PTO rules, and in the event of a conflict between the rules of Virginia and the PTO rules with respect to the questioned conduct, the latter would control.
Comment 10 states that as to other conduct, if jurisdictions have conflicting rules regarding the questioned conduct, 8.5(b)(2) resolves the conflict by choosing the rules of the jurisdiction where the conduct occurred. The physical presence of the lawyer is not dispositive in determining where the questioned conduct occurred. Determining where the lawyer’s conduct occurred in the context of transactional work may require the appropriate disciplinary tribunal to consider other factors, including the residence and place of business of any client, third person, or public institution such as a court, tribunal, public body, or administrative agency, the interests of which are materially affected by the lawyer’s actions.