What may a Tennessee firm's out-of-state lawyer do while awaiting Tennessee admission, including non-court 'law business' like drafting documents?

Plain-English summary

The opinion revisited the employment of lawyers admitted in other jurisdictions but not yet admitted in Tennessee, answering the same set of questions addressed in 2002-F-91(a) about supervision, clerk status, letterhead, directories, and precautions against unauthorized practice. As in the earlier opinion, it relied on Tennessee Supreme Court Rule 7, Section 1.01 (license required to practice law or do law business in Tennessee) and treated practice by an out-of-state-only lawyer as the unauthorized practice of law except for pro hac vice and limited federal appearances. It cited DR 3-101 of the former Code and RPC 5.5(b) of the Rules of Professional Conduct (effective March 1, 2003) as prohibiting aiding the unauthorized practice of law.

While an application for admission was pending, the opinion concluded that the unadmitted lawyers had to work under direct supervision when appearing pro hac vice under Supreme Court Rule 19 (and should consult federal court and agency rules for federal practice); were not required to function as clerks; and could appear on letterheads, advertisements, buildings, and directories with a clear, publicly readable designation that they were admitted only where licensed. For pro hac vice appearances, the employing Tennessee lawyer was responsible for the unadmitted lawyer's obligations, had to sign all pleadings, and had to personally appear unless excused.

The opinion went further than 2002-F-91(a) on non-court "law business." It concluded that a lawyer unlicensed in Tennessee who had applied for admission could perform services outside court or administrative appearances, including counseling clients on Tennessee law and drafting wills, contracts, or other legal documents, as long as the work was done under the supervision of a Tennessee-licensed lawyer within a Tennessee law firm or employer, with that Tennessee lawyer responsible for the associated professional obligations from employment until admission. It added that, effective March 1, 2003, supervising Tennessee lawyers had to comply with RPC 5.1 (responsibilities of supervisory lawyers) and the unlicensed lawyers would be bound by RPC 5.2 (responsibilities of subordinate lawyers).

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 2002-F-91(b) on September 11, 2015, "due to changes in the law or rules." 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 not-yet-admitted out-of-state lawyer draft wills or contracts for a Tennessee firm's clients?

A: Per the opinion, yes, as non-court "law business," but only under the supervision of a Tennessee-licensed lawyer within the Tennessee firm or employer, who remained responsible for the associated professional obligations until the lawyer was admitted.

Q: What changed when the Rules of Professional Conduct took effect on March 1, 2003?

A: The opinion stated that, effective that date, supervising Tennessee lawyers had to comply with RPC 5.1 (supervisory responsibilities) and the unlicensed lawyers would be bound by RPC 5.2 (subordinate-lawyer responsibilities), in addition to the existing supervision requirements.

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), Supreme Court Rule 19 (pro hac vice), DR 3-101 of the former Code, and the then-incoming RPC 5.5(b), RPC 5.1, and RPC 5.2. The modern analogs are Model Rule 5.5 (unauthorized and multijurisdictional practice), Model Rule 5.1 (supervisory-lawyer responsibilities), and Model Rule 5.2 (subordinate-lawyer responsibilities). The Board later revisited the question in 2012-F-91(c), which was also vacated.

Citations and references

Rules of Professional Conduct and court rules:

• DR 3-101 of the former Code; RPC 5.5(b) (aiding the unauthorized practice of law). Modern analog: Model Rule 5.5 / Tennessee RPC 5.5
• RPC 5.1 (supervisory lawyers) and RPC 5.2 (subordinate lawyers), effective March 1, 2003. Modern analog: Model Rules 5.1 and 5.2
• Tennessee Supreme Court Rule 7, Section 1.01 (license required); Tennessee Supreme Court Rule 19 (pro hac vice)

See also

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

Source

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

Original opinion text

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

2002-F-91(b) - 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(b)

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, and Rule 5.5(b) of the Tennessee Rules of Professional Conduct which become effective March 1, 2003, prohibit a lawyer from aiding a nonlawyer 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 when appearing as counsel in the trial and appellate courts of Tennessee pro hac vice in accordance with Tennessee Supreme Court Rule 19. As to Federal court or agency practice, such unadmitted lawyers should obtain the answer to this question from the rules of the respective Federal courts and agencies in Tennessee before which such lawyers desire to practice.

• 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 jurisdictions 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. As to Federal court or agency practice, the employing law firm or lawyer should obtain the answer to this question from the rules of the respective Federal courts and agencies in Tennessee before which such unadmitted lawyers desire to appear.

As to the “law business,” lawyers unlicensed in Tennessee but who have applied for admission pursuant to Supreme Court rules are permitted to perform other services outside of Court or administrative appearances as set forth above which require the interpretation of Tennessee law or which otherwise constitute the conducting of a law business or the practice of law in Tennessee, including, but not limited to, activities such as the counseling of clients regarding Tennessee law, or the drafting of wills, contracts or other legal documents, as long as such services are conducted under the supervision of a Tennessee licensed lawyer within a Tennessee law firm or Tennessee lawyer employer. The Tennessee law firm or Tennessee lawyer shall be responsible for the ethical and professional obligations associated with the work and/or services undertaken by the unlicensed attorney-employee. This supervision and obligation shall remain in full force and effect from the time of employment through the date that the unlicensed lawyer is admitted to the Tennessee bar and granted a license according to the rules of the Tennessee Supreme Court.

Effective March 1, 2003, employing or supervisory Tennessee lawyers must comply with the specific requirements imposed upon supervisory lawyers by Rule 5.1 of the Rules of Professional Conduct, and the lawyers unlicensed in Tennessee will also be bound by the provisions of Rule 5.2 setting forth the responsibilities of subordinate lawyers.

This 13th day of December, 2002.

ETHICS COMMITTEE:

Kim A. McMillan, Chair

Michelle A. Benjamin

John W. Robinson, Sr.

APPROVED AND ADOPTED BY THE BOARD