Can a Tennessee firm employ a lawyer licensed in another state who is awaiting Tennessee admission, and list that lawyer on its letterhead?

Plain-English summary

The opinion addressed the employment of lawyers admitted in other jurisdictions but not yet admitted in Tennessee, a situation the Board noted was increasingly common as lawyers moved and the bar specialized. Because the admissions process could take months, firms often employed an out-of-state lawyer during the interim. The inquiry asked whether such lawyers had to work only under direct supervision, had to function as clerks, could appear on letterheads as attorneys, whether a designation such as "admitted in Texas" sufficed, whether their names could appear on building directories, and what precautions the firm had to take against unauthorized practice.

The opinion explained that under Tennessee Supreme Court Rule 7, Section 1.01, no person may engage in the practice of law or law business in Tennessee without a Tennessee license, and that, for purposes of the opinion, practice by a lawyer admitted only elsewhere constituted the unauthorized practice of law except when appearing pro hac vice or making limited appearances before federal courts or agencies. It noted that DR 3-101 of the former Code prohibited a lawyer from aiding a non-lawyer in the unauthorized practice of law.

While an application for admission was pending, the opinion answered the specific questions: the unadmitted lawyers had to work under direct supervision of licensed Tennessee attorneys only when appearing pro hac vice under Supreme Court Rule 19; they were not required to function as clerks; their names could appear on firm letterheads, advertisements, buildings, and directories, provided there was a clear, publicly readable designation that they were admitted only where licensed; and for pro hac vice appearances, the employing firm or lawyer was responsible for the unadmitted lawyer's professional obligations, had to sign all pleadings, and had to personally appear for all court proceedings unless excused by the court.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 2002-F-91(a) on September 11, 2015, "due to changes in the law or rules." This opinion also predated Tennessee's 2003 Rules of Professional Conduct and relied on the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance; it is reproduced and summarized here as a historical research record only. Verify the current Tennessee Supreme Court Rules and Rules of Professional Conduct before acting.

Common questions

Q: Could a Tennessee firm list a not-yet-admitted out-of-state associate on its letterhead?

A: Per the opinion, yes, provided the letterhead carried a clear designation (readable by the public) that the lawyer was admitted only in the jurisdiction where licensed. The opinion gave the same answer for advertisements, building signs, and directories.

Q: Could the unadmitted lawyer appear in a Tennessee court?

A: The opinion concluded such appearances were limited to pro hac vice under Supreme Court Rule 19, with the employing Tennessee lawyer responsible for the unadmitted lawyer's obligations, signing all pleadings, and personally appearing unless the court excused it.

Q: Is this opinion still in effect?

A: No. The Board vacated it on September 11, 2015 due to changes in the law or rules. It is preserved here only as a historical research record.

Background and rules framework

The opinion interpreted Tennessee Supreme Court Rule 7, Section 1.01 (license required to practice law), Supreme Court Rule 19 (pro hac vice admission), and DR 3-101 of the former Code of Professional Responsibility (aiding the unauthorized practice of law). The modern analog is RPC 5.5 (Model Rule 5.5) on the unauthorized and multijurisdictional practice of law; the Board later revisited the question in 2002-F-91(b) and 2012-F-91(c), the last of which was also vacated.

Citations and references

Rules of Professional Conduct (former Code) and court rules:

• DR 3-101 (aiding the unauthorized practice of law). Modern analog: Model Rule 5.5 / Tennessee RPC 5.5
• Tennessee Supreme Court Rule 7, Section 1.01 (license required); Tennessee Supreme Court Rule 19 (pro hac vice)

See also

• Tennessee Op. 2012-F-91(c): Out-of-State Lawyers Awaiting Tennessee Admission
• Tennessee Op. 2002-F-91(b): Out-of-State Lawyers Awaiting Tennessee Admission

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2002-f-91a

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

2002-F-91(a) - Vacated*

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

FORMAL ETHICS OPINION 2002-F-91(a)

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:

• Must such unadmitted lawyers function only under the direct supervision of licensed Tennessee attorneys?

• Must they be identified and function as clerks?

• Can their names appear as attorneys on firm letterheads?

• Does a reference such as "admitted in Texas" suffice, especially when the firm has no offices in "Texas"?

• May their names appear on building and other directories?

• 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; and (2) when making limited appearances before Federal courts or agencies.

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:

• The unadmitted lawyers must function under the direct supervision of licensed Tennessee attorneys only when appearing as counsel in the trial and appellate courts of Tennessee pro hac vice in accordance with Tennessee Supreme Court Rule 19.

• They are not required to be identified and function as clerks.

• Their names may appear on firm letterheads; provided,

• There is reference or designation on the letterhead that they are admitted only in the jurisdiction where they are licensed.

• Their names may appear on advertisements, buildings or building directories as long as there are also references or designations on the advertisements, building signs or directories easily readable by the general public that they are admitted only in the jurisdictions where they are licensed.

• As to the unadmitted lawyers’ appearances as counsel in the trial and appellate courts of Tennessee pro hac vice, 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 8th day of March, 2002.

ETHICS COMMITTEE:

Kim A. McMillan, Chair

Michelle A. Benjamin

Jack W. Robinson, Sr.

APPROVED AND ADOPTED BY THE BOARD