New York Adopts Rules Permitting Practice of Law by Foreign-Admitted In-House Counsel and Attorneys Temporarily in New York

by Pillsbury Winthrop Shaw Pittman LLP
Contact

Effective December 30, 2015, in-house lawyers working in New York who are only admitted to practice outside the United States are no longer limited to serving as foreign law advisors, but registration is required within 90 days. In addition, New York has adopted a version of the Model Rule 5.5(a) provision on the multi-jurisdictional practice of law first proposed by the New York State Bar in 2003.

Chief Judge Jonathan Lippman, citing the globalization of the practice of law and noting the importance of New York to the world economy, announced long-awaited amendments to New York’s rules governing the unauthorized practice of law. First, New York joins nineteen states in permitting lawyers who are working as inside corporate counsel, but are only admitted to practice outside the United States, to register and practice in New York as corporate counsel. In-house counsel who are admitted in a U.S. jurisdiction other than New York have been able to do so since April 20, 2011. (See 22 NYCRR Part 522.) California, Florida and Pennsylvania are notably absent from this group of jurisdictions that permit foreign lawyers to act as in-house lawyers and give advice on laws in addition to the laws of the countries where they are admitted to practice. Second, New York will permit lawyers not admitted in New York to practice there on a temporary basis. (See 22 NYCRR Part 523.) In Judge Lippman’s words, “lawyers from other states and nations [are now permitted] to appear in this state to work on ‘fly-in, fly-out’ transactional and short-term transactional or short-term litigation-related matters.”

Registration of Foreign-Admitted Inside Counsel

Effective on April 20, 2011, New York became the 45th state to allow an attorney who is employed in the state full-time as inside corporate counsel, but admitted to practice in another state, to give legal advice to his or her client, its affiliates, employees, officers and directors on issues related to the attorney’s work for his or her employer. To be permitted to provide such advice even though the attorney was not admitted in New York–and thus not otherwise permitted to practice law in New York–the attorney is required to register. Effective December 30, 2015, New York permits lawyers admitted to practice only outside the United States to register as inside corporate counsel so that the lawyer may provide the same legal services to his or her corporate clients as U.S. lawyers who register. Before the rule became effective, foreign lawyers working in corporate legal departments were either required to register as foreign law consultants, which limited the legal advice they could give to that of the foreign jurisdiction where they were admitted, or to limit their activities to that of law clerks and supervising outside counsel. The rule does not allow registered in-house counsel to appear in litigation in New York; pro hac vice admission is still required. In addition, the provision permitting registered in-house counsel to perform pro bono work applies only to attorneys admitted to practice in a U.S. jurisdiction.

The rule does not solve all problems for foreign members of corporate legal departments. For example, the rule does not permit inside counsel who are not admitted to practice in their home jurisdictions to register. This is a problem for foreign lawyers who are trained in jurisdictions that do not permit inside counsel to be admitted to practice as lawyers and for members of corporate legal departments who are not lawyers. Most significantly, the rule has a reciprocity provision, making it available only to lawyers from countries that permit New York lawyers to register and work as in-house counsel in those countries.

Registration is required of all foreign lawyers working in New York for corporate legal departments on December 30, 2015, within ninety days of that date. Foreign lawyers who join New York corporate legal departments after December 30 have thirty days to register. To register, a lawyer must provide a certificate of good standing from the jurisdiction or jurisdictions where the lawyer is admitted; a letter from the grievance committee of each such jurisdiction certifying that no charges have been filed against the attorney (or the substance and disposition of any charges filed); an affidavit from the lawyer certifying that the lawyer will only be providing legal services to the corporation and its affiliates, employees, officers and directors and the lawyer will comply with the New York Rules of Professional Conduct; and an affidavit from the attorney's employer attesting to the scope of the attorney's employment. Any non-English documents must be accompanied by a certified English translation.

Temporary Practice

New York is hardly in the forefront of adopting clear rules on multi-jurisdictional practice. Over 40 states have already adopted some version of ABA Model Rule of Professional Conduct 5.5, which clarifies when an attorney may practice law temporarily in a jurisdiction where the lawyer is not admitted. Indeed, the New York State Bar proposed that New York adopt a version of Model Rule 5.5 a dozen years ago. The change is nonetheless welcome. The rule covers lawyers admitted elsewhere in the United States as well as lawyers in good standing and admitted or authorized to practice in non-U.S. jurisdictions if the lawyers in that jurisdiction are subject to effective regulation and discipline by a professional or government body. This means that inside counsel that are not admitted to practice in their home countries are not covered by this rule, nor are attorneys that have registered to practice as inside counsel or foreign law consultants in New York. Lawyers who take advantage of this exception temporarily to practice in New York are subject to New York's Rules of Professional Conduct.

The amendment makes clear that engaging in the following activities in New York is not the unauthorized practice of law, so long as the lawyer is permitted to engage in the activities where he or she is admitted and New York also permits its lawyers to do so:

First, a non-New York lawyer may provide legal services in New York temporarily in association with a New York lawyer who actively participates in and assumes joint responsibility for the matter.

Second, a non-New York lawyer may engage in activities on a temporary basis in New York relating to a pending or potential lawsuit or other form of dispute proceeding where the lawyer or the person the lawyer is assisting is permitted or expects to be permitted to appear in the proceeding. For example, a non-New York lawyer may take a deposition in New York in connection with a lawsuit in which the lawyer has appeared in another state. A non-New York lawyer also may meet with potential witnesses in New York to prepare a complaint for an action in which the lawyer expects to appear.

Third, a non-New York lawyer may participate in alternative dispute resolution proceedings in New York or may provide legal services temporarily in New York in connection with alternative dispute resolution proceedings pending or to be held outside New York so long as it is not necessary for the lawyer to be admitted pro hac vice in order to participate in the New York or non-New York proceedings. To appear in alternative dispute resolution proceedings in New York does not usually require a pro hac vice admission unless the proceedings are in connection with a New York lawsuit.

Fourth, if the second or third exceptions do not apply, but the services are related to the non-New York lawyer's practice of law where he or she is admitted, this too is permitted on a temporary basis. This exception, for example, would cover attending a negotiating session in New York in connection with a transaction that is primarily being handled in a jurisdiction where the lawyer is admitted.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury Winthrop Shaw Pittman LLP | Attorney Advertising

Written by:

Pillsbury Winthrop Shaw Pittman LLP
Contact
more
less

Pillsbury Winthrop Shaw Pittman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.