Friday, December 31, 2021

Stateside Counsel And Unauthorized Practice

The Virgin Islands Supreme Court denied a petition of the Bar Association to have it amend its rules on multijurisdictional and unauthorized practice

Before considering the merits of the Bar Association  request we note that the Bar Association cites to no authority to support the filing of its petition to amend the Rules of this Court. This Court, as the court of last resort of the Virgin Islands, certainly possesses the constitutional, statutory, and inherent authority to regulate all aspects of the practice of law in the Territory, as well as to adopt the rules of practice and procedure for the courts of the Virgin Islands, including those pertaining to the admission and conduct of attorneys.

While the court chided the association for not proceeding through the Advisory Committee on Rules

Nevertheless, while we emphasize that we are under no obligation whatsoever to consider, or even docket, the Bar Association’s petition, we exercise our discretion to do so in this instance.

The court had made a "deliberate" choice to not adopt ABA Model Rule 5.5(c)-(e)  but considered alternatives

As a result of  that process, this Court adopted Rule 202.1 to establish a formal process for the admission and registration of in house counsel. And in direct response to a request from the Virgin Islands Bar Association, this Court amended Rule 201, pertaining to pro hac vice admission, to greatly liberalize the rule by repealing the lifetime limit of three pro hac vice appearances by a lawyer or law firm and to also repeal the requirement that a pro hac vice attorney pay a licensing fee.

The Bar's concern

The Bar Association, however, does explain why it believes its proposed rule amendment is necessary. It maintains that its “members have expressed concern about the application of the UPL laws as they relate to transactional matters involving stateside counsel and local counsel and scenarios in which stateside counsel is engaged in or will be engaged in litigation in the Territory on a pro hac vice basis,‘ and that the typical interactions between local and stateside counsel are impeded by the application of the recent [UPL] decisions in the transactional, litigation and pre litigation settings ’ (Pet 1 2) According to the Bar Association, “these interactions are standard practice between lawyers in the mainland, who may be from differing states involved in the same type of interactions but yet do not run afoul of any UPL laws stateside.

As to Rule 5.5

while many United States jurisdictions have adopted Model Rule 5 5, most have not done so without modification In fact, the American Bar Association, through its Center for Innovation recently released the results of a study of the disciplinary rules ad0pted by the 50 states and the District of Columbia which reflects that only 3.9% of those jurisdictions have adopted Model Rule 5.5 as is or with minor revisions, while a staggering 96 1% either have adopted it with significant changes or not at all ‘ While many jurisdictions adopted Model Rule 5 5(c) and only changed other portions of the rule, a significant number of jurisdictions, including but not limited to Alabama, California, Connecticut the District of Columbia, Kentucky, Mississippi, New Mexico, Nevada, North Dakota South Carolina, South Dakota, Tennessee, Texas, Virginia West Virginia, and Wyoming, either deleted the reasonably expects language entirely or placed additional restrictions on its use that are not included in the Model Rule 5 5(c), such as limiting the number of matters on which one may work; conditioning the authorization on registration with, payment of a fee to, or obtaining
a license from a court or disciplinary authority, mandating association with local counsel, or limiting the authorization only to attorneys from certain reciprocal jurisdictions or to the representation of a client in the jurisdiction the attorney is licensed Given the substantial diversity in how United States jurisdictions address multijurisdictional practice and the unauthorized practice of law, this Court is not convinced that the rules we have already adopted are such a departure from standard practice” so as to warrant amendment.

While the court commended the association for bringing its concerns forward

While we again decline to adopt Model Rule 5.5(c), we refer the matter to the Advisory Committee on Rules, and it is our sincere hope that our reasons for doing so will alleviate this uncertainty and further clarify what acts do and do not, constitute the unauthorized practice of law in the Virgin Islands.

The court has previously questioned whether stateside counsel had engaged in unauthorized practice. (Mike Frisch)

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