2012-F-91(c) - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 2012-F-91(c)

Inquiry is made concerning the ethical propriety of employment of lawyers admitted to practice in other jurisdictions but not admitted to practice in Tennessee.

This opinion amends and modifies Tennessee Formal Opinion (TFEO) 2002-F-91(b) adopted December 31, 2002, which in turn amended TFEO 2002-F-91(a) adopted March 8, 2002, and TFEO 1985-F-91 adopted April 29, 1985. 

TFEO 1985-F-91 arose out of the increasing tendency of lawyers to move between jurisdictions and the increasing specialization of the bar.  Tennessee lawyers and law firms employ lawyers to work in their firms in Tennessee who have not been admitted to the practice of law in Tennessee.  Even if such lawyers promptly apply for admission to practice law in Tennessee, because of the delays inherent in the admissions process, there could be a period of months between the date of their employment as a lawyer in Tennessee and the date of their admission to practice law in Tennessee.  The question presented was, in what practices may lawyers licensed to practice law in another jurisdiction engage in Tennessee while awaiting admission to the practice of law in Tennessee?  Because of changes in Rules of Supreme Court of Tennessee (SCR) and Rules of Professional Conduct (RPC), the answers to the questions provided in TFEO 2002-F-91(b) have changed substantially. 

Included in the Supreme Court of Tennessee’s “…inherent power is the essential and fundamental right to prescribe and administer rules pertaining to the licensing and admission of attorneys.”  Petition of Burson, 909 S.W.2d. 768, 773, (Tenn. 1995); Sneed v. Board of Professional Responsibility, 301 S.W.3d. 603, 612 (Tenn. 2010); Hughes v. Board of Professional Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008).  The Court “…possesses not only the inherent supervisory power to regulate the practice of law, but also the corollary power to prevent the unauthorized practice of law.”  Petition of Burson, supra, 909 S.W.2d. at 773.  The Supreme Court of Tennessee (Supreme Court) possesses the exclusive authority to regulate the practice of law and define the unauthorized practice of law.  Tennessee Environmental v. Tennessee Water, 254. S.W.3d 398, 403 (Tenn. Ct. App. 2007)(perm. app. denied 2008).  Except as provided by the SCR, the practice of law in Tennessee by lawyers licensed in other jurisdictions who are not licensed to practice law in Tennessee constitutes the unauthorized practice of law.

SCR 7, Licensing of Attorneys, Section 1.01, prohibits any person from practicing law in Tennessee unless in accordance with SCR 7, as follows:

License Required. No person shall engage in the 'practice of law' or the 'law business' in Tennessee, except pursuant to the authority of this Court, as evidenced by a license issued in accordance with this Rule, or in accordance with the provisions of this Rule governing special or limited practice.[1]

Any person who has been admitted and licensed to practice law in other jurisdictions may seek admission to practice law in Tennessee by comity without examination, pursuant to SCR 7, Art. V, Persons Admitted in Other Jurisdictions Seeking Waiver of Examination.  The Supreme Court amended SCR 7, Sec. 5.01, effective January 24, 2011, by adding the following:

…The application for comity admission shall be submitted to the Board of Law Examiners and approved prior to commencement of law business in Tennessee or employment as a lawyer in Tennessee. . .

(Emphasis added).

Lawyers licensed to practice law in other jurisdictions may also seek admission to practice law in Tennessee by examination, pursuant to SCR 7, Art. III, Application for Admission by Examination.   SCR 7, Sec. 10.04 permits law graduates seeking admission in Tennessee by examination pursuant to SCR 7, Art. III, to engage in practice in Tennessee on a limited and conditional basis while awaiting admission by examination.

By its terms, SCR 7, Sec. 10.04 is applicable to any Tennessee resident who has graduated from an accredited or approved law school, whether admitted to practice law in another jurisdiction or not.   But Sec. 10.04(b) permits limited practice in Tennessee only for the period through the date of announcement of the results of the second bar examination conducted after the individual graduated from law school.  SCR 7, Sec. 10.04(b) admonishes trial judges that limited practice must accord strictly with the provisions of the rule and that no deviation would be permitted.[2]

Prior to the January 24, 2011, amendment to SCR 7, Sec 5.01, the Supreme Court  adopted SCR 8, RPC 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law, on September 29, 2010, effective January 1, 2011.  Consistent with SCR 7, Sec. 1.01, SCR 8, RPC 5.5(a) prohibits a lawyer from engaging in the “…practice of law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assisting another in doing so.”  

RPC 5.5(b) provides that “[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 systemic and continuous presence in this jurisdiction for the practice of law…”  A lawyer who is not licensed in Tennessee, but who resides, has an office or other systematic and continuous presence in Tennessee or who is employed as a lawyer in Tennessee cannot provide legal services in Tennessee on a temporary basis pursuant to RPC 5.5(c).

RPC 5.5(d) permits a lawyer who is not admitted to practice in Tennessee, but who is licensed to practice in another jurisdiction, to provide legal services in Tennessee as follows, and to have “an office or other systematic and continuous presence” in Tennessee. Cmt.[5][15].   

(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.

The amendment to SCR 7, Sec. 5.01, which prohibits a lawyer admitted in another jurisdiction and seeking admission in Tennessee by comity from “…the commencement of law business in Tennessee or employment as a lawyer in Tennessee…” until the application for comity is approved was not intended to prohibit attorneys from providing legal services in Tennessee pursuant to RPC 5.5(d).[3]

Pursuant to the provisions of SCR 7 discussed herein above, two categories into which non-resident lawyers licensed to practice law in other jurisdictions who are applying for admission to practice law in Tennessee[4] fall are:

(1)        Lawyers applying for admission in Tennessee by comity, pursuant to SCR 7, Art. V;

SCR 7, Art. V, Sec. 5.01 specifically prohibits lawyers who are applying for admission by comity, from commencement of law business in Tennessee or employment as a lawyer in Tennessee until the application for comity has been approved.  Such lawyers may, however, provide legal services in Tennessee as permitted by RPC 5.5(d).

(2)        Lawyers applying for admission in Tennessee by examination, pursuant to SCR 7, Art. III, who are not eligible or not permitted to practice in Tennessee on a limited basis pursuant to SCR 7, Sec. 10.04.[5]

Non-resident lawyers who are applying for admission by examination pursuant to SCR 7, Art. III, but who are not permitted to practice in Tennessee on a limited basis pursuant to SCR 7, Sec. 10.04, cannot engage in the limited practices and court appearances permitted by SCR 7, Sec. 10.04(a)(b).  SCR 7, Sec. 1.01 does not grant authority to lawyers in category (2) to practice law in Tennessee to any greater extent or degree than lawyers in category (1) applying for admission by comity.  Therefore, lawyers who are applying for admission in Tennessee by examination, who are not permitted to practice in Tennessee on a limited basis pursuant to SCR 7, Sec 10.04, cannot commence law business in Tennessee or be employed as a lawyer in Tennessee until admission by examination in Tennessee is approved.  Such lawyers may, however, provide legal services in Tennessee as permitted by RPC 5.5(d).

This 30th day of July, 2012.

ETHICS COMMITTEE:

Michael Callaway

William Bovender

Wade Davies

APPROVED AND ADOPTED BY THE BOARD

 

 

[1]Although SCR 7 does not provide definitions of “practice of law” and “law business,” the Supreme Court incorporated the definitions of those terms provided in Tennessee Code Annotated 23-3-101 into SCR 7, Sec. 1.01.  Petition of Burson, supra, 909 S.W. 2d at 776.

T.C.A. 23-3-101. Chapter definitions. – As used in this chapter, unless the context otherwise requires:  (1) “Law business” means the advising or counseling for valuable consideration of any person as to any secular law, the drawing or the procuring of or assisting in the drawing for valuable consideration of any paper, document or instrument affecting or relating to secular rights, the doing of any act for valuable consideration in a representative capacity, obtaining or tending to secure for any person any property or property rights whatsoever, or the soliciting of clients directly or indirectly to provide such services; (3) “Practice of law” means the appearance as an advocate in a representative capacity or the drawing of papers, pleading or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies, or the soliciting of clients directly or indirectly to provide such services.    

[2] The limited practice permitted by SCR7, Sec. 10.04 is more fully defined in TFEO 2002-F-91(b), which portion of the Opinion remains in effect.

[3] In construing rules of the Supreme Court of Tennessee, the rules of statutory construction apply.  Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011); Doe v. Bd. Of Professional Responsibility, 104 S.W.3d 465, 469 (Tenn. 2003) (applying the rules of statutory construction to Tennessee Supreme Court Rule 9); Board of Professional Responsibility v. Love, 256 S.W.3d 644, 651-652 (Tenn. 2008) (applied rules of statutory construction to construe Tennessee Supreme Court Rule 9).  In construing rules of the Supreme Court the goal is to ascertain and give effect to the Court’s intent in adopting its rules. Thomas v. Oldfield, 279 S.W.3d  259, 261 (Tenn. 2009).

 

We assume that whenever the legislature enacts a provision, it is aware of other statutes relating to the same subject matter.  Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994).  Unless the newer statute expressly repeals or amends the old one, the new provision is presumed to be in accord with the same policy embodied in the prior statutes; thus, “statutes ‘in pari materia’ – those relating to the same subject or having a common purpose – are to be construed together, and the construction of one such statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of another statute.”  Id. at 809.  If a conflict exists, specific statutory provisions will be given effect over conflicting general provisions.  Arnwine v. Union County Board Of Education, 120 S.W.3d 804, 809 (Tenn. 2003).  Statutes on the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible.  In re Akins, 87 S.W.3d 488, 493 (Tenn. 2002)

 

Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009).  See also; Hayes v. Gibson County, 288 S.W.3d. 334, 337, 338 (Tenn. 2009); Brundage v. Cumberland County, 357 S.W.3d 361, 365 (Tenn. 2011).

 

[4] Lawyers licensed in other jurisdictions who provide legal services in Tennessee as in house counsel pursuant to RPC 5.5(d)(1) are required to be registered pursuant to SCR 7, Sec.10.01, as opposed to being admitted to the practice of law in Tennessee by comity pursuant to SCR 7, Art. V, or by examination pursuant to SCR 7, Art. III.

 

[5] Lawyers who reside in the state and apply for admission in Tennessee by examination pursuant to SCR 7, Art. III can be permitted to practice in Tennessee on a limited and conditional basis pursuant to SCR 7, Sec. 10.04.