Defending In-House Counsel
New Hampshire bar admission historically has been by examination only. As of March, 2003, the New Hampshire Supreme Court also permits reciprocal admission under certain circumstances to attorneys admitted in another state. An attorney admitted to practice in Massachusetts, serving as general counsel to an Illinois corporation in the offices of its New Hampshire subsidiary, applied for admission to the bar under the reciprocity rules. After reviewing the application, the Court asked the applicant to file a memorandum addressing the question whether his legal work in New Hampshire since 2000 constitutes the unauthorized practice of law in New Hampshire. The Court issued an order inviting memoranda addressing the issue, and on October 1, 2003, NELF filed a memorandum suggesting that an attorney in these circumstances should not be considered to have engaged in the unauthorized practice of law. NELF argues that the prohibitions on the unauthorized practice of law are intended to protect the general public against legal services provided by unqualified persons. This concern is not implicated when a lawyer admitted to practice in another state has a single client, a corporate employer who is well positioned to evaluate the qualifications of its attorney-employees. NELF also notes that there is growing recognition nationally that the traditional concept of state-by-state regulation of the practice of law inadequately reflects the modern realities of the practice of law, particularly by corporate counsel. In August 2002 the American Bar Association House of Delegates adopted the recommendations of the ABA Commission on Multijurisdictional Practice. Those recommendations included an amended Model Rule 5.5 that provides, in subsection (d), that a lawyer admitted in a United States jurisdiction may provide legal services in another jurisdiction that “are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.” In its comment on Model Rule 5.5(d), the Commission said,
"This paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work."
NELF argued that the Court should adopt an interpretation patterned on Model Rule 5.5. NELF also argued that an overly restrictive definition of the “unauthorized” practice of law is bad public policy and will be inimical to the continued growth and prosperity of New Hampshire. Businesses that locate, remain, and expand in the state directly affect the state’s economy by providing jobs and a stable tax base, and have a further economic impact through their purchase of goods, services, and real estate and through contributions to the civic and charitable needs of the communities in which they locate. In-house counsel practice law as their employer corporations practice business—through telephone, fax, email, teleconferencing, and travel to multiple corporate locations. States that create unnecessarily restrictive barriers to the in-house practice of corporate law will increasingly be at a competitive disadvantage in attracting and retaining business to those states that more closely track the approach set out in the ABA’s Model Rule 5.5.
The Court adopted the recommendation of NELF and in December, 2003 amended its rules to provide that “an applicant’s service as corporate counsel shall not constitute the unauthorized practice of law” if the applicant submits an affidavit that he performed legal services solely for a corporation, received his entire compensation from that corporation, and the corporation is not engaged in the practice of law. That action puts New Hampshire in the forefront of New England states on this issue. Maine, Massachusetts, Rhode Island, and Vermont rules contain no exception for in-house counsel practice by attorneys licensed in another jurisdiction, and the Rules Committee of the Connecticut Judiciary has officially said that they will not adopt the Connecticut Bar Association’s proposed rule that would have authorized special admission for in-house attorneys working in Connecticut but admitted in another jurisdiction.
New Hampshire bar admission historically has been by examination only. As of March, 2003, the New Hampshire Supreme Court also permits reciprocal admission under certain circumstances to attorneys admitted in another state. An attorney admitted to practice in Massachusetts, serving as general counsel to an Illinois corporation in the offices of its New Hampshire subsidiary, applied for admission to the bar under the reciprocity rules. After reviewing the application, the Court asked the applicant to file a memorandum addressing the question whether his legal work in New Hampshire since 2000 constitutes the unauthorized practice of law in New Hampshire. The Court issued an order inviting memoranda addressing the issue, and on October 1, 2003, NELF filed a memorandum suggesting that an attorney in these circumstances should not be considered to have engaged in the unauthorized practice of law. NELF argues that the prohibitions on the unauthorized practice of law are intended to protect the general public against legal services provided by unqualified persons. This concern is not implicated when a lawyer admitted to practice in another state has a single client, a corporate employer who is well positioned to evaluate the qualifications of its attorney-employees. NELF also notes that there is growing recognition nationally that the traditional concept of state-by-state regulation of the practice of law inadequately reflects the modern realities of the practice of law, particularly by corporate counsel. In August 2002 the American Bar Association House of Delegates adopted the recommendations of the ABA Commission on Multijurisdictional Practice. Those recommendations included an amended Model Rule 5.5 that provides, in subsection (d), that a lawyer admitted in a United States jurisdiction may provide legal services in another jurisdiction that “are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.” In its comment on Model Rule 5.5(d), the Commission said,
"This paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work."
NELF argued that the Court should adopt an interpretation patterned on Model Rule 5.5. NELF also argued that an overly restrictive definition of the “unauthorized” practice of law is bad public policy and will be inimical to the continued growth and prosperity of New Hampshire. Businesses that locate, remain, and expand in the state directly affect the state’s economy by providing jobs and a stable tax base, and have a further economic impact through their purchase of goods, services, and real estate and through contributions to the civic and charitable needs of the communities in which they locate. In-house counsel practice law as their employer corporations practice business—through telephone, fax, email, teleconferencing, and travel to multiple corporate locations. States that create unnecessarily restrictive barriers to the in-house practice of corporate law will increasingly be at a competitive disadvantage in attracting and retaining business to those states that more closely track the approach set out in the ABA’s Model Rule 5.5.
The Court adopted the recommendation of NELF and in December, 2003 amended its rules to provide that “an applicant’s service as corporate counsel shall not constitute the unauthorized practice of law” if the applicant submits an affidavit that he performed legal services solely for a corporation, received his entire compensation from that corporation, and the corporation is not engaged in the practice of law. That action puts New Hampshire in the forefront of New England states on this issue. Maine, Massachusetts, Rhode Island, and Vermont rules contain no exception for in-house counsel practice by attorneys licensed in another jurisdiction, and the Rules Committee of the Connecticut Judiciary has officially said that they will not adopt the Connecticut Bar Association’s proposed rule that would have authorized special admission for in-house attorneys working in Connecticut but admitted in another jurisdiction.
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