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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-1971" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2015/09/U.S.-Map-300x200.jpg" alt="U.S. Map" width="300" height="200">We&rsquo;ve written <a href="https://www.thelawforlawyerstoday.com/2015/01/licensing-requirements-trip-up-in-house-lawyer/">before </a>to remind in-house lawyers that even if you don&rsquo;t sign pleadings or appear in court on behalf of your corporate employer, you are still practicing law when you give advice and participate in business transactions on your employer&rsquo;s behalf. &nbsp;If you do&nbsp;so without being duly licensed, you are straying into&nbsp;unauthorized practice, in violation of ethics rules &mdash; and in many jurisdictions, in violation of statutory law.&nbsp; Here are the two latest cautionary tales.
Failure to register as required
The first example,&nbsp;as <a href="http://lawprofessors.typepad.com/legal_profession/2015/09/the-web-page-of-the-massachusetts-board-of-bar-overseers-has-a-summary-of-an-admonition-imposed-on-an-attorney-on-june-11-2.html">reported </a>a couple weeks ago in the Legal Profession Blog, involves an unnamed Massachusetts lawyer who received an admonishment.&nbsp; The lawyer was general counsel of a company headquartered in Massachusetts.&nbsp; When the company relocated its HQ to Philadelphia, the&nbsp; GC moved there and continued to work, but failed to obtain the &ldquo;Limited In-House Corporate Counsel License&rdquo; required under&nbsp;Pennsylvania law.
Here&rsquo;s the kicker:&nbsp; the GC only advised the company on issues under Massachusetts and federal law, and referred&nbsp;issues concerning Pennsylvania law to outside legal counsel.&nbsp;&nbsp;Even with these self-imposed limitations, the GC was held to have violated&nbsp;the Massachusetts version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_5_unauthorized_practice_of_law_multijurisdictional_practice_of_law.html">Model Rule 5.5(a)</a>, prohibiting the unauthorized practice of law.&nbsp;&nbsp;A ruling that smacks of over-zealousness?&nbsp;&nbsp; Maybe.&nbsp; And the GC received the lowest form of discipline (and anonymously, at that).&nbsp; Still, would you want to be in that GC&rsquo;s shoes?
&ldquo;Holding out&rdquo; as a lawyer where not licensed
The second tale of disciplinary woe comes from North Dakota, where last month a lawyer was <a href="http://www.ndcourts.gov/court/opinions/20150032.htm">admonished </a>for violating North Dakota&rsquo;s version of Rule 5.5, based on merely having been &ldquo;held out&rdquo; in a press release as authorized to practice there&nbsp;when he was not.
For about a year, the lawyer worked as&nbsp;a staff attorney in the Bismarck, North Dakota&nbsp;office of a firm that was based&nbsp;in Minneapolis. While in Bismarck, the lawyer&nbsp;worked as a registered lobbyist, conducted title research, and assisted in drafting title opinions &mdash; but although duly licensed in Minnesota,&nbsp;the lawyer was never licensed in North Dakota.
Contesting the charge of&nbsp;unauthorized practice, the lawyer asserted that his activities didn&rsquo;t constitute&nbsp;legal practice.&nbsp; Didn&rsquo;t matter, said the state disciplinary board:
&ldquo;Clear and convincing evidence establishes that [the lawyer] and his law firm held him out as someone authorized to practice law in North Dakota. The&nbsp;... firm&rsquo;s news release plainly states [that the lawyer] was hired as an attorney in the firm&rsquo;s Bismarck office, identifying him as a &lsquo;government relations specialist&rsquo; and a &lsquo;staff attorney.&rsquo; The release also states [that the lawyer&rsquo;s] &lsquo;energy practice focuses on title examination and oil and gas law.&rsquo; The news release contained no disclaimers alerting the public to the fact that [the lawyer] was not admitted to practice in North Dakota.&rdquo; (Emphasis ours.)
The North Dakota board cited a <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/0/1998/1998-Ohio-338.pdf">1998 opinion of the Ohio Supreme Court</a>, here in my stomping grounds, in which general counsel for a county agency was held to have&nbsp;improperly&nbsp;held herself&nbsp;out as being licensed to practice in Ohio&nbsp;by using letterhead that identified her as &ldquo;General Counsel&rdquo; when she was&nbsp;licensed in two other jurisdictions, but not in Ohio.&nbsp;&nbsp; She was also referred to in news articles as &ldquo;general counsel&rdquo; for the agency.&nbsp; This conduct occurred while the GC was in the process of applying for an Ohio license.&nbsp; That led&nbsp;the state supreme court to hold&nbsp;that the improper holding out did not signify a lack of moral fitness (!) to receive an Ohio license.&nbsp; The conclusion seems a no-brainer, and the lawyer is listed on the current Ohio rolls as being licensed here &mdash; but obviously with some past delay and embarrassment.
Don&rsquo;t let this happen to you
The take-aways for corporate and in-house lawyers are obvious.
<ul>
<li>If you are located in a jurisdiction where you are not licensed, check the rules of that locale &mdash; you may need to register, pay a fee (of course) and not hold yourself out (or be held out) as a lawyer until you do so.</li>
<li>Disclaimers can possibly help with the holding-out problem; both the North Dakota opinion and the Ohio opinion it cited mentioned the lack of any disclaimer indicating the limits on the offending lawyers&rsquo; licensure.</li>
</ul>
These rules are technical, and can appear to be designed to guard state borders in a way that can seem monopolistic; but you ignore them at the risk of inconvenience and embarrassment, at the very least.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Unauthorized practice — a continuing risk for unregistered in-house lawyers