Board of Professional Responsibility

 

85-F-91 - Vacated*

 

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

FORMAL ETHICS OPINION 85-F-91

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

The issue to be addressed arises from the increasing tendency of lawyers to move about the country and the increasing specialization of the bar. Tennessee lawyers and law firms are, with increased frequency, employing lawyers to work in their offices in Tennessee who have not been admitted in Tennessee. These lawyers may promptly apply for admission, but because of the delays inherent in the admissions process, there may be a period of months between the date of their employment and the date of their actual admission.

Inquiry is made concerning specific circumstances, to-wit:

1. Must such unadmitted lawyers function only under the direct supervision of licensed Tennessee attorneys?
2. Must they be identified and function as clerks?
3. Can their names appear as attorneys on firm letterheads?
4. Does a reference such as "admitted in Texas" suffice, especially when the firm has no offices in "Texas"?
5. May their names appear on building and other directories?
6. In general, what precautions, if any, must the employing firm or lawyer take to assure that no violation of the prohibitions against unauthorized practice occurs?

Tennessee Supreme Court Rule 7, Section 1.01, provides:

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.

For the limited purpose of this Ethics Opinion only, the practice of law within the jurisdiction of Tennessee by lawyers admitted to practice in other jurisdictions constitutes the unauthorized practice of law, except: (1) When permitted to appear pro hac vice; or (2) when making limited appearances before Federal courts or agencies; or (3) when the foreign lawyer has an active application pending and under consideration by the Tennessee State Board of Law Examiners for admission to practice in Tennessee.

Disciplinary Rule 3-101 of the Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8 prohibits a lawyer from aiding a non-lawyer in the unauthorized practice of law, however.

During the interim that the foreign lawyer has an active application pending and under consideration for admission to practice in Tennessee, the specific inquires herein are answered as follows:

1. The unadmitted lawyers must function only under the direct supervision of licensed Tennessee attorneys.
2. They are not required to be identified and function as clerks.
3. Their names may appear on firm letterheads, provided,
4. There is reference or designation on the letterhead that they are admitted only in the jurisdiction where they are licensed.
5. Their names may not appear on buildings or building directories.
6. The employing law firm or lawyer shall be responsible for the ethical and professional obligations of the unadmitted foreign attorney and shall sign all pleadings, motions, briefs, etc. and the Tennessee lawyer shall personally appear for all court proceedings, unless excused by the court in which the case is pending.

This 29th day of April, 1985.

ETHICS COMMITTEE:

Edwin C. Townsend, Chairman
W. J. Flippin
Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD