What precautions must a Tennessee firm take when it employs a lawyer admitted elsewhere whose Tennessee admission application is still pending?

Plain-English summary

The inquiry arose from Tennessee firms increasingly employing lawyers admitted elsewhere to work in Tennessee offices before their Tennessee admission was complete, given the delays inherent in the admissions process. The opinion was asked to address several specific points: whether such lawyers must work only under direct supervision; whether they must be identified as clerks; whether their names could appear on firm letterhead, including with a designation like "admitted in Texas" even where the firm has no Texas office; whether their names could appear on building directories; and what precautions an employing firm must take to avoid an unauthorized-practice violation.

The opinion construed Tennessee Supreme Court Rule 7, Section 1.01, which requires a license to practice law or do law business in Tennessee, and concluded that, for purposes of the opinion, practice within Tennessee by a lawyer admitted only elsewhere is the unauthorized practice of law except when appearing pro hac vice, making limited appearances before federal courts or agencies, or while an admission application is actively pending before the Tennessee Board of Law Examiners. Disciplinary Rule 3-101 separately bars a lawyer from aiding a non-lawyer in the unauthorized practice of law. For the period an application is actively pending, the opinion answered the specific inquiries: the unadmitted lawyer must work only under a licensed Tennessee attorney's direct supervision; need not be identified or function as a clerk; may appear on firm letterhead if the letterhead notes admission only in the licensing jurisdiction; may not appear on buildings or building directories; and the employing firm or lawyer is responsible for the unadmitted lawyer's ethical and professional obligations, must sign all pleadings, motions, and briefs, and must personally appear at court proceedings unless excused by the court.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 85-F-91 on September 11, 2015 due to changes in the law or rules. This opinion was also issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced 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 only as a historical research record. Do not rely on it as current; verify the current rules on multijurisdictional practice and admission under RPC 5.5 and Tennessee Supreme Court Rule 7 before acting.

Common questions

Q: Can a lawyer admitted only in another state work in a Tennessee law office while a Tennessee admission application is pending?

A: The opinion permitted it, but only under the direct supervision of a licensed Tennessee attorney, with the employing firm remaining responsible for the lawyer's professional obligations and signing all filings.

Q: Could the unadmitted lawyer's name appear on firm letterhead?

A: Yes, the opinion permitted it, provided the letterhead noted that the lawyer was admitted only in the jurisdiction where licensed.

Q: Is this opinion still good law?

A: No. The Board vacated this opinion on September 11, 2015 due to changes in the law or rules; consult current Tennessee Supreme Court Rule 7 and RPC 5.5 for the governing standard.

Background and rules framework

The opinion construed Tennessee Supreme Court Rule 7, Section 1.01 (license required to practice law in Tennessee) and Disciplinary Rule 3-101 (aiding unauthorized practice) of the Code of Professional Responsibility. The modern correlate is Model Rule 5.5 (unauthorized practice of law; multijurisdictional practice of law), cited here as a navigational cross-reference rather than a rule the opinion itself applied; this opinion has since been vacated, so the current text of Tennessee Supreme Court Rule 7 and RPC 5.5 controls.

Citations and references

Rules of Professional Conduct:

• Tennessee Supreme Court Rule 7, Section 1.01 (license required to practice law)
• Disciplinary Rule 3-101, Code of Professional Responsibility (aiding unauthorized practice of law)

See also

• AZ Ethics Op. 96-06: Lawyers Awaiting Admission; Supervision of Non Lawyers; Out of State Lawyers

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-91

Original opinion text

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

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:

• 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; 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:

• The unadmitted lawyers must function only under the direct supervision of licensed Tennessee attorneys.

• 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 not appear on buildings or building directories.

• 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