THE NH SUPREME Court last month adopted an amendment to Rule 42(10)(c), governing admission on motion, which will allow in-house counsel who are not members of the NH Bar to certify that they have not been actively practicing law in New Hampshire.

The amendment requires corporate counsel who wish to apply for admission to the New Hampshire Bar to submit an affidavit that certifies that:

- while serving as counsel, the applicant performed legal services solely for a corporation, association or other business entity, including its subsidiaries and affiliates;

- while serving as counsel, the applicant received his or her entire compensation from said corporation, association or business entity; and

- said corporation, association or business entity is not engaged in the practice of law or provision of legal services.

This past summer, the court asked the Bar and the attorney general to address the legal issues raised by the application for admission on motion of a corporate attorney who had been operating in New Hampshire for several years but was not admitted to the NH Bar. The court had asked the applicant to file a memorandum addressing whether the attorney’s activities on behalf of his employer constituted the unauthorized practice of law. After soliciting comments from members of the Bar, the NHBA Board of Governors filed a letter with the court stating the Bar’s position that the attorney’s activities did not constitute the unauthorized practice of law. The Bar made reference to the ABA’s Model Rule 5.5, which proposes exceptions that would permit in-house counsel to advise their employers without being admitted to the Bar in every jurisdiction in which the corporation operates.

According to a letter from NH Supreme Court Clerk Eileen Fox, there are several pending applications for admission on motion from in-house attorneys in New Hampshire who, by filing an affidavit regarding their activities, will be able to take advantage of the amended Rule 42 to proceed with their applications.

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