We’ve written before to remind in-house lawyers that even if you don’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’s behalf.  If you do so without being duly licensed, you are straying into unauthorized practice, in violation of ethics rules — and in many jurisdictions, in violation of statutory law.  Here are the two latest cautionary tales.

Failure to register as required

The first example, as reported a couple weeks ago in the Legal Profession Blog, involves an unnamed Massachusetts lawyer who received an admonishment.  The lawyer was general counsel of a company headquartered in Massachusetts.  When the company relocated its HQ to Philadelphia, the  GC moved there and continued to work, but failed to obtain the “Limited In-House Corporate Counsel License” required under Pennsylvania law.

Here’s the kicker:  the GC only advised the company on issues under Massachusetts and federal law, and referred issues concerning Pennsylvania law to outside legal counsel.  Even with these self-imposed limitations, the GC was held to have violated the Massachusetts version of Model Rule 5.5(a), prohibiting the unauthorized practice of law.  A ruling that smacks of over-zealousness?   Maybe.  And the GC received the lowest form of discipline (and anonymously, at that).  Still, would you want to be in that GC’s shoes?

“Holding out” as a lawyer where not licensed

The second tale of disciplinary woe comes from North Dakota, where last month a lawyer was admonished for violating North Dakota’s version of Rule 5.5, based on merely having been “held out” in a press release as authorized to practice there when he was not.

For about a year, the lawyer worked as a staff attorney in the Bismarck, North Dakota office of a firm that was based in Minneapolis. While in Bismarck, the lawyer worked as a registered lobbyist, conducted title research, and assisted in drafting title opinions — but although duly licensed in Minnesota, the lawyer was never licensed in North Dakota.

Contesting the charge of unauthorized practice, the lawyer asserted that his activities didn’t constitute legal practice.  Didn’t matter, said the state disciplinary board:

“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 … firm’s news release plainly states [that the lawyer] was hired as an attorney in the firm’s Bismarck office, identifying him as a ‘government relations specialist’ and a ‘staff attorney.’ The release also states [that the lawyer’s] ‘energy practice focuses on title examination and oil and gas law.’ The news release contained no disclaimers alerting the public to the fact that [the lawyer] was not admitted to practice in North Dakota.” (Emphasis ours.)

The North Dakota board cited a 1998 opinion of the Ohio Supreme Court, here in my stomping grounds, in which general counsel for a county agency was held to have improperly held herself out as being licensed to practice in Ohio by using letterhead that identified her as “General Counsel” when she was licensed in two other jurisdictions, but not in Ohio.   She was also referred to in news articles as “general counsel” for the agency.  This conduct occurred while the GC was in the process of applying for an Ohio license.  That led the state supreme court to hold that the improper holding out did not signify a lack of moral fitness (!) to receive an Ohio license.  The conclusion seems a no-brainer, and the lawyer is listed on the current Ohio rolls as being licensed here — but obviously with some past delay and embarrassment.

Don’t let this happen to you

The take-aways for corporate and in-house lawyers are obvious.

  • If you are located in a jurisdiction where you are not licensed, check the rules of that locale — 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.
  • 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’ licensure.

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.