Friday, November 24, 2006

Making Corporations Safe from the Threat of Unauthorized Malpractice of Law

Posted by Jeff Lipshaw

Cranberry guru and co-editor Childress passes on this story from Law.com about new rules being passed to insure that in-house lawyers are licensed to practice in the state where they are employed.

Objecting to licensure of in-house lawyers would be the height of political incorrectness, and I don't intend to be politically incorrect here.  When I moved from Michigan to Indiana in 1999 to becomeStateseal the general counsel of Great Lakes Chemical, I immediately applied for for full (not business counsel) admission.  It was pretty cool, because in Indiana, you are only admitted on a foreign (that's Michigan) license conditionally until you have certified in each of five succeeding years that you have practiced more than half your time in Indiana.  So every year, I would make my certification, pay my dues, and get a little sticker to put on my admission certificate. 

Sometime in the last several years, like the other states in the article, Indiana passed its rules for admission on a business counsel license.  So I was never faced with the possibility of having a limited license.  But even under the limited license rule, you still have to fill out the form for the Committee on Character and Fitness, and that was the biggest part of the job.  I was tracing old traffic tickets down, and trying to figure how where I worked during each summer of college.

Why does the cynic in me say this is all about the $800 fee and not about protecting the public?  Certainly if you are holding yourself out to the public and taking fees, and appearing in the courts of a state, you should hold a license.   But if you are licensed in any state and doing nothing but representing the corporation in-house, then additional requirements seem silly.  Indeed, ABA Model Rule of Professional Conduct 5.5(d) says as much, providing merely that "a lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that . . . are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission. . . ."

Somehow, the licensing rules take me back to images of circuit riders, and reading the law in a lawyer's office.  The ABA Model Rule recognizes the modern reality:  even if the headquarters of my corporation is located in Indiana, I am rarely practicing "Indiana law."  Doing anything more than what is dictated by the Model Rule says something about the guild or, more likely, about the fee revenue.

http://lawprofessors.typepad.com/legal_profession/2006/11/making_corporat.html

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