 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - October 17, 2003 Bar, AG Cautiously Advise Court on In-House Counsel Practice Issue THE NEW HAMPSHIRE Bar Association and the NH Attorney General's Office, citing the specific situation and cautioning against broad interpretations, have advised the NH Supreme Court not to consider the activities of an in-house counsel, not licensed but operating in New Hampshire, as the unauthorized practice of law. The attorney, who has not been named, applied to the court for admission by motion. He acknowledged that for several years, he has been advising an Illinois corporation on a variety of matters, from an office in New Hampshire, without being admitted to practice in New Hampshire. None of his activities involved any clients other than his employer, and he did not handle any cases brought before New Hampshire courts. The Supreme Court, considering the matter a case of first impression, asked the applicant to file a memorandum addressing why the applicant's legal work should not be considered the unauthorized practice of law. The court then sought input from the Bar and the Attorney General's Office on the issue. The Bar, in turn, posted on its Web site the unnamed applicant's memorandum, and solicited comment from members of the Bar. Several attorneys and the NHBA Ethics Committee submitted comments. The Board of Governors last month discussed the issue and decided to write the Court in support of the application, saying, "[the Board] does not consider that the activity of the unnamed applicant, given the particular circumstances, constitutes the unauthorized practice of law." The Board's letter also referred to the ABA's Model Rules of Professional Conduct 5.5 (c, d) as providing "an appropriate view of the issue." That rule, although not adopted in New Hampshire, is being considered for adoption by many states and is among changes to the NH Code of Professional Conduct now under consideration by the NHBA Ethics Committee. In a separate vote, the Board authorized the NHBA Committee on Administration of the Bar to investigate forms of regulation for non-licensed attorneys operating in New Hampshire as in-house counsel. Attorney General Peter Heed took a similar position to the Bar's, saying he did not believe that the particular case should be considered unauthorized practice of law. Heed, however, cautioned the Court against broad interpretations, and suggested that perhaps some form of licensing short of admission ought to be required for in-house counsel operating in the state. "To the extent, however, that this Court is inclined to go beyond the specific facts of this case and make a broader ruling regarding legal ethics, unauthorized practice, and the multi-jurisdictional practice of law in general, the attorney general respectfully recommends that the Court first provide other interested parties with a full and fair opportunity to be heard on these very important issues." ABA Model Rule Cited in Responses Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. (d) 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: (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.
|
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
