The New Regime amends the prior foreign in-house counsel registration regime (the “Old Regime”) in several key areas. Each is described in turn in the balance of this Alert.
I. Reciprocity and Bar Membership.
Under the Old Regime, foreign in-house counsel could only register if they were “currently admitted to the bar as an active member in good standing in at least one other jurisdiction, within [or outside] the United States, which would similarly permit an attorney admitted to practice in this State to register as in-house counsel.”5 Thus, to be eligible to register under the Old Regime, a New York attorney had to be able to register as in-house counsel in the home jurisdiction of a foreign in-house counsel registrant (e.g., if a registrant was originally licensed to practice in Sweden, a New York licensed lawyer working in Sweden would need to have been able to similarly register to work in Sweden as in-house counsel). This provision effectively precluded registration for many foreign in-house counsel, as a number of jurisdictions outside of the United States do not permit registration of in-house counsel (foreign or domestic) because of the “independence” requirement for bar membership.6
The New Regime eliminates the reciprocity requirement. This means that a foreign in-house counsel may now register in New York under the New Regime even if a New York lawyer would not be able to do the same in the foreign in-house counsel’s home jurisdiction.
II. Registration and Compliance: Retaining Active Bar Membership.
In many foreign jurisdictions—including France, Italy and Sweden, to name a few—trained lawyers practicing as in-house counsel are not considered sufficiently independent to be members of the bar. 7 In these countries, lawyers suspend their bar memberships in order to practice in-house or, if they never worked in private practice, only become eligible for bar membership once they cease working in-house.
The Old Regime’s Part 522 required that a registrant be a
[…] member in good standing of a recognized legal profession in a foreign [non-United States] jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and subject to effective regulation by a duly constituted professional body or public authority.8
In addition, compliance with Part 522 was predicated on the in-house counsel “remain[ing] an active member in good standing in […] a foreign jurisdiction as described in section 5.221(b)(1).”9 These provisions prevented attorneys from countries that did not allow in-house counsel to be members of the bar from registering under the Old Regime.
The New Regime rectifies these problems by adding provisions to Parts 522.1 and 522.3 providing that registration is not limited to those foreign in-house counsel who are active bar members in a foreign country. Now those who are not currently admitted in a foreign bar may register as long as they have been trained as a lawyer in their home jurisdiction and would be eligible to become a member of the bar in that jurisdiction once no longer employed as in-house counsel, or, if there is no bar, could still practice law in that jurisdiction.10
III. Proof.
The recent amendment also updates the documentary evidence required for a foreign in-house counsel registrant to prove compliance with the provisions of Part 522.1. Whereas the Old Regime required registrants to produce from their home jurisdiction a certificate of good standing and letters from the grievance committee stating what charges if any were pending against the registrant,11 the New Regime adds language that addresses the fact that many foreign countries do not issue good standing certificates or have the equivalent of a grievance committee. Now, if the certificate and/or letters are not available, the registrant may provide an affidavit with supporting documents instead.12 In lieu of the certificate, the affidavit must state that the registrant is trained as lawyer and eligible to be a member or otherwise can practice law upon ceasing to be an in-house counsel, and, instead of a letter, the affidavit must state whether any charges have been filed against the registrant and, if charges have been filed, the substance and disposition of those charges.13
IV. Registration Period.
Under the New Regime, new registrants—either in-house counsel practicing in New York as of April 15, 2020, or in-house counsel hired to practice in New York after the amendment’s April 15, 2020 effective date—will have 90 days to register under Part 522 after the later of those dates.14 This extends the Old Regime’s in-house counsel registration grace period from 30 days to 90 days and brings it into step with the registration grace periods other jurisdictions across the country have adopted for similar registration provisions.15
What This Means in Practice. 16
The New Regime opens the doors for all foreign in-house counsel to register with the appropriate department of the New York Appellate Division. Companies can now be confident that they may hire in-house counsel from foreign jurisdictions to work in their New York offices. Moreover, companies may move in-house attorneys from an office in a foreign jurisdiction to their New York offices, as their needs compel, without fear of running afoul of New York’s rule prohibiting the unauthorized practice of law. But time is of the essence. The amended grace period provides 90 days for a registrant to apply under the new regime. In light of the short 90-day application window and the multiple forms of documentary proof required for registration,17 it would be wise for in-house counsel interested in registering under Part 522 to commence that process promptly. In sum, the New Regime appears to clarify the registration requirements for foreign in-house counsel and may play a role in preserving New York’s position as the world’s preeminent center for the practice of law and international business.
1 All references herein to “in-house” counsel should be understood to mean “in-house counsel practicing in New York.”
2 The amendment incorporates nearly all the changes recommended by the New York City Bar Association’s Professional Responsibility Committee in May 2019. Proposal available at: http://ww2.nycourts.gov/sites/default/files/document/files/2019-06/Part%20522%20Request%20for%20Public%20Comment_Redacted.pdf.
3 New York Rule of Professional Conduct 5.5, comments 1 & 2 (2018), available at: https://nysba.org/NYSBA/Practice%20Resources/Professional%20Standards%20for%20Attorneys/Professional%20Standards%20for%20Attorneys/Rules%20of%20Professional%20Conduct%20as%20amended%20060118.pdf.
4 See 22 NYCRR § 521 (2020). Foreign legal consultants must register under Part 521 and may only render advice or provide legal services concerning the law of the foreign jurisdictions in which they are admitted to practice. Id.
5 22 NYCRR § 522.1(b)(2) (Dec. 10, 2015) (emphasis added).
6 Greater than sixty percent of European countries do not require in-house lawyers to be members of the bar. The National Organization of Bar Counsel, The Regulation of In-House Counsel—Overview of International Trends, (2015), available at: https://www.nobc.org/resources/Documents/State%20Intl%20Reciprocity/In%20House%20Counsel%20-%20Research%20OverviewMarch2015.pdf. Moreover, Austria, Belgium, China, Croatia, Czech Republic, Finland, France, Hungary, India, Italy, China, Lithuania, Luxemburg and Sweden all prohibit in-house counsel from remaining active members of the bar. Id. In
7 See The National Organization of Bar Counsel, The Regulation of In-House Counsel—Overview of International Trends, (2015). This prohibition on membership is rooted in the age-old tenet of legal ethics that an attorney must retain independence in her practice of law writ large. See, e.g., New York Rule of Professional Conduct 5.4 (2018).
8 22 NYCRR § 522.1(b)(1)(ii) (Dec. 10, 2015).
9 Id. at § 522.3(a).
10 For registration, see, 22 NYCRR § 522.1(b)(1)(iii) (Apr. 15, 2020) (“[…] (iii) where no such authority exists, or where such authority exists but suspends the membership of members employed as in-house counsel, is trained and licensed as a lawyer in a foreign jurisdiction and eligible to join the bar of such foreign jurisdiction, if such bar exists, or is otherwise eligible to engage in the private practice of law in such jurisdiction, upon ceasing to be employed as in-house counsel[.]”); for compliance, see, Id. at 522.3(a)(2) (Apr. 15, 2020) (similar).
11 See 22 NYCRR § 522.2(a) & (b) (Dec. 10, 2015) (“(a) a certificate of good standing from each jurisdiction in which the applicant is licensed to practice law; (b) a letter from each such jurisdiction’s grievance committee […] [.]”)
12 See 22 NYCRR § 522.2(a)(2) & (b)(2) (Apr. 15, 2020).
13 See Id. (“[(a)](2) if the foreign jurisdiction in which the applicant is licensed to practice law does not issue such certificates, an affidavit along with relevant supporting documentation confirming that the applicant is trained as a lawyer and eligible to join the bar of such foreign jurisdiction, if such a bar exists, or is otherwise eligible to engage in the private practice of law in such jurisdiction, upon ceasing to be employed as in-house counsel; [(b)](2) if the foreign jurisdiction in which the applicant is licensed to practice law does not provide such letters, an affidavit certifying whether charges have been filed with or by such committee or body against the applicant, and if so, the substance of the charge and the disposition thereof.”)
14 Counsel already employed in-house as of April 15, 2020 have a grace period of 90 days to register. Counsel employed after April 15, 2020 have 90 days from day the begin practicing as in-house counsel to register. See 22 NYCRR § 522.7(a) (Apr. 15, 2020).
15 New York’s 30-day application grace period was the shortest of any state in the country among jurisdictions that specify a time period for registration of foreign in-house counsel. Six other jurisdictions provide for 90-day grace periods. See AZ ST S CT r. 38(a)(4) (2017); CONNECTICUT BAR EXAMINING COMMITTEE AUTHORIZED HOUSE COUNSEL RULE 5, effective Jan. 1, 2008: https://www.jud.ct.gov/CBEC/housecounsel.htm#Forms (citing CONN. RULE OF SUPER. CT. § 2-15A(b)(1)(D) (2018)); ILL. S. CT. RULE 716(l) (2018); IOWA CT. RULE 31.16(1) (2017); KAN. S. CT. Rule 712(a)(1)(b) (2018). Wisconsin provides for a 60-day grace period. WIS. S. CT. Rule 10.03(4)(f) (2018).
16 The in-house counsel registration application form is available at: http://ww2.nycourts.gov/sites/default/files/document/files/2018-03/In_houseCounselADApplication_InitialRegistration.pdf.
17 To register under Part 522, applicants must: (1) apply to the appropriate Appellate Division Department (based on place of residency or practice); and (2) submit an application including (in the following order): (a) the application; (b) a certificate of good standing for each jurisdiction in which the applicant is licensed to practice (if applicable) or (if not applicable) an affidavit, along with supporting documentation, evidencing that the registrant is trained as lawyer and eligible to be a member or otherwise can practice law upon ceasing to be an in-house counsel; (c) a letter from each jurisdiction’s grievance committee, certifying any charges filed against the applicant and the disposition thereof (if applicable), or (if not applicable) an affidavit, along with supporting documentation evidencing whether any charges have been filed against the registrant and the substance and disposition of those charges; (d) any additional relevant supporting documents; and (e) (if applicable) an affidavit evidencing any inability to comply with the requirements prescribed in items (a) through (d), including a description of efforts made to fulfill those requirements. There is no fee to apply for registration as in-house counsel. See, Application for Registration as In-House Counsel in the State of New York, General Instructions, available at: http://ww2.nycourts.gov/sites/default/files/document/files/2018-03/In_houseCounselADApplicationInstructions.pdf.
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