What can a lawyer licensed in another state or country do in a Virginia law firm without being admitted in Virginia?

Plain-English summary

The opinion examines how far a "foreign lawyer" (one licensed and in good standing in another U.S. jurisdiction or a foreign nation, but not in Virginia) may go in practicing law in Virginia, both temporarily and on a continuous, systematic basis, under Rule 5.5. It uses the example of a Virginia-based firm whose partners and associates include lawyers admitted elsewhere who use the firm's Virginia address and maintain a systematic and continuous presence, working variously on Virginia-law matters, their home jurisdiction's law, or federal, international, and third-country matters.

The committee concludes that the foreign lawyers are not engaged in the unauthorized practice of law so long as they limit their practice to the law of the jurisdictions where they are licensed, to federal law not involving Virginia law, or to the temporary and occasional practice authorized by Rule 5.5(d)(4)(i)-(iii). It reads Comment [4] to Rule 5.5, which lets a foreign lawyer maintain a continuous Virginia presence if the practice is limited to areas that by state or federal law do not require Virginia admission, against the prior UPL Opinions (195, 201) the Supreme Court of Virginia had approved. Foreign lawyers limited to federal practice (for example, patent practice before the USPTO, immigration, military, or tax) may maintain a Virginia office under Sperry v. Florida, 373 U.S. 379 (1963), though the committee cautions that not every matter a lawyer calls "federal practice" fits the exemption (a bankruptcy or patent-related matter may require applying Virginia law) and that federal practice does not exempt the lawyer from Virginia's disciplinary authority under Rule 8.5. A lawyer admitted only in a foreign nation may maintain a Virginia office only if certified as a Foreign Legal Consultant under Rule 1A:7.

The committee also addresses lawyers practicing the law of a jurisdiction in which they are not admitted, and contract lawyers. It concludes that whether a foreign lawyer violates Rule 5.5(c) by advising on the law of a jurisdiction where the lawyer is not authorized should be determined by the host jurisdiction's rules, not Virginia's, overruling the prior UPL Opinions to that extent. For contract lawyers, a firm hiring an unadmitted lawyer for a single Virginia matter in association with a Virginia lawyer is temporary practice allowed under Rule 5.5(d)(4)(i); hiring one for several Virginia matters over time could be continuous and systematic, requiring Virginia admission.

In practice

Under the Virginia rules as they stood when the opinion issued, a non-Virginia lawyer may work in a Virginia firm or maintain a continuous Virginia office if the practice is limited to areas that, by state or federal law, do not require Virginia admission, such as federal practice under Sperry or the law of a jurisdiction where the lawyer is admitted. The opinion holds that such lawyers may not advise clients on Virginia law systematically except as Rule 5.5(d)(4) permits temporary and occasional practice. It holds that a foreign-nation lawyer needs Foreign Legal Consultant certification under Rule 1A:7 to maintain a Virginia office, that "federal practice" does not exempt a lawyer from Virginia's disciplinary authority under Rule 8.5 or cover matters that turn on Virginia law, and that whether practicing another jurisdiction's law violates Rule 5.5(c) is governed by that host jurisdiction's rules. For contract lawyers, a single Virginia matter handled with a Virginia lawyer is temporary practice, while recurring Virginia matters over time may require Virginia admission.

Common questions

Q: Can a lawyer admitted only in another state keep a permanent office in a Virginia firm?

A: The opinion concludes yes, if the practice is limited to areas that do not require Virginia admission, that is, federal matters under Sperry or the law of a jurisdiction where the lawyer is admitted. The lawyer may not practice Virginia law on a systematic basis except for the temporary practice Rule 5.5(d)(4) allows.

Q: Does a federal practice (patent, immigration, tax) require Virginia admission?

A: Generally no for the core federal practice. The opinion concludes that lawyers limited to such federal practice may maintain a Virginia office under Sperry v. Florida, but cautions that matters turning on Virginia law fall outside the exemption and that Rule 8.5 still subjects the lawyer to Virginia discipline.

Q: What about a lawyer admitted only in a foreign country?

A: The opinion concludes that a lawyer admitted only in a foreign nation may maintain a Virginia office to practice that nation's law only if certified as a Foreign Legal Consultant under Rule 1A:7, and may otherwise practice as Rule 5.5(d)(4) permits.

Q: Can a Virginia firm hire an unadmitted contract lawyer?

A: The opinion concludes that hiring an unadmitted lawyer for a single Virginia matter in association with a Virginia lawyer is temporary practice under Rule 5.5(d)(4)(i), but hiring one for several Virginia matters over time could be continuous and systematic practice that requires Virginia admission.

Background and rules framework

The opinion interprets Rule 5.5 of the Virginia Rules of Professional Conduct (Model Rule 5.5), governing multijurisdictional and foreign-lawyer practice, including the temporary-practice safe harbors in Rule 5.5(d)(4) and the continuous-presence allowance in Comment [4], and Rule 8.5 (Model Rule 8.5) on disciplinary authority. It reads the rules against Virginia's Unauthorized Practice Rules and approved UPL Opinions (158, 195, 201, 210), the Foreign Legal Consultant rule (Rule 1A:7), and the federal supremacy holding of Sperry v. Florida.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / Va. Rule 5.5(c), (d) (multijurisdictional and foreign-lawyer practice)
• Model Rule 8.5 / Va. Rule 8.5 (disciplinary authority over unadmitted lawyers)
• Va. S. Ct. Rule 1A:7 (Foreign Legal Consultant certification)

Cases:

• Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), federal license preempts state UPL restrictions
• Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004), federal immigration practice does not preempt state discipline

Other opinions cited:

• Va. UPL Ops. 195, 201, 210: scope of foreign-lawyer practice in a Virginia firm (partly overruled by Rule 5.5)

See also

• VSB Ethics Op. 1872: Virtual Law Office and Executive Office Suites
• VSB Ethics Op. 1869: Pro Se Self-Help Centers and Rule 6.5

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1856.pdf

Original opinion text

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

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

LEGAL ETHICS OPINION 1856

SCOPE OF PRACTICE FOR FOREIGN
LAWYER IN VIRGINIA

Lawyers frequently find it necessary to engage in cross-border legal practice to
represent their clients. Multi-jurisdictional practice is on the increase and this trend is not
only inevitable, but necessary. Globalization, the explosion of technology, and the
increasing complexity of law practice require lawyers to cross state borders to afford
clients competent representation. 1
This opinion explores the extent to which a lawyer not licensed in Virginia may
engage in the practice of law in Virginia, both on a temporary basis and “continuously
and systematically” under Rule 5.5 of the Virginia Rules of Professional Conduct. For
purposes of the opinion, the foreign lawyer is licensed and in good standing in a
jurisdiction other than Virginia. The importance of these issues to contemporary law
practice cannot be overstated.
A hypothetical will help develop the questions presented:
A law firm is located only in Virginia. Some of the lawyers in the law
firm are active members of the Virginia State Bar and in good standing.
However, several of the firm’s partners and associates are licensed to
practice law in other U.S. jurisdictions, but not in Virginia. These foreign
lawyers are: based in the Virginia law firm; use the law firm’s Virginia
address in their communications with clients, third parties and the general
public; and have established an office and a “systematic and continuous
presence in Virginia for the practice of law.” The firm and these foreign
lawyers provide legal services to clients in Virginia, throughout the U.S.
and abroad. Some of the foreign lawyers in the firm work on matters
involving Virginia clients governed by Virginia law. Others work only
on matters involving the law of their admitting jurisdiction. Still others
limit their practice exclusively to matters involving areas of federal
practice, international law or third country law. 2
The initial question raised is, are the foreign lawyers practicing in this firm
engaged in the unauthorized practice of law? In this hypothetical, the foreign lawyers are
practicing “continuously and systematically” in a Virginia law firm. Whether they are
authorized to do so is controlled by state and federal law.

1

Report of the American Bar Association’s Multijurisdictional Practice Commission to the ABA House
of Delegates (August 2002) at 12; found at http://www.abanet.org/cpr/mjp/intro-cover.pdf
2
For purposes of this opinion, federal practice excludes bankruptcy practice but refers to practice before
agencies of the United States government. Third country law means the law of a foreign nation in which
the foreign lawyer is not admitted or otherwise authorized to practice. International law means practice in
which international laws, treaties, compacts, conventions, etc., are applicable to a legal matter.

1

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

Later, this opinion will also discuss foreign lawyer practice in the context of a
Virginia law firm hiring a contract lawyer who is not admitted to practice in Virginia, but
is admitted to practice in another United States jurisdiction or a foreign nation. If this
firm were to hire a contract lawyer to assist with one specific matter involving Virginia
law, would the contract lawyer have to be licensed to practice law in Virginia? Does it
matter how long the project / matter lasts? Finally, what if the firm hired the contract
lawyer to work over a period of time on several different Virginia matters? In this part of
the opinion, the Committee will discuss contract lawyers whose activity might be either
“temporary and occasional practice” or a “continuous and systematic” practice.
Applicable Rules and Prior Opinions
The controlling authority for these inquiries is Rule 5.5(c) and (d)(4)(i-iv) of
Virginia’s Rules of Professional Conduct:
(c) A lawyer shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.
(d) Foreign Lawyers:
(1) “Foreign Lawyer” is a person authorized to practice
law by the duly constituted and authorized governmental body of
any State or Territory of the United States or the District of
Columbia, or a foreign nation, but is neither licensed by the
Supreme Court of Virginia or authorized under its rules to
practice law generally in the Commonwealth of Virginia, nor
disbarred or suspended from practice in any jurisdiction.
(2) A Foreign Lawyer shall not, except as authorized by
these Rules or other law:
(i) establish an office or other systematic and continuous
presence in Virginia for the practice of law, which may occur
even if the Foreign Lawyer is not physically present in Virginia;
or
(ii) hold out to the public or otherwise represent that the
Foreign Lawyer is admitted to practice law in Virginia.
(3) A Foreign Lawyer shall inform the client and
interested third parties in writing:
(i) that the lawyer is not admitted to practice law in
Virginia;
(ii) the jurisdiction(s) in which the lawyer is licensed to
practice; and

2

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

(iii) the lawyer’s office address in the foreign jurisdiction.
(4) A Foreign Lawyer may, after informing the client as
required in 3(i)-(iii) above, provide legal services on a temporary
and occasional basis in Virginia that:
(i) are undertaken in association with a lawyer who is
admitted to practice without limitation in Virginia or admitted
under Part I of Rule 1A:5 of this Court and who actively
participates in the matter;
(ii) are in or reasonably related to a pending or potential
proceeding before a tribunal in Virginia or another jurisdiction, if
the Foreign Lawyer, or a person the Foreign Lawyer is assisting,
is authorized by law or order to appear in such proceeding or
reasonably expects to be so authorized;
(iii) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution
proceeding in Virginia or another jurisdiction, if the services arise
out of or are reasonably related to the Foreign Lawyer’s practice
in a jurisdiction in which the Foreign Lawyer is admitted to
practice and are not services for which the forum requires pro hac
vice admission; or
(iv) are not within paragraphs (4)(ii) or (4)(iii) and arise
out of or are reasonably related to the representation of a client
by the Foreign Lawyer in a jurisdiction in which the Foreign
Lawyer is admitted to practice or, subject to the foregoing
limitations, are governed primarily by international law.
Comment [4] to Rule 5.5 provides guidance in the application of the foregoing
portions of the Rule:
…Despite the foregoing general prohibition, a Foreign Lawyer
may establish an office or other systematic and continuous
presence in Virginia if the Foreign Lawyer’s practice is limited to
areas which by state or federal law do not require admission to
the Virginia State Bar. (Emphasis added).
To apply these Rules and Comment [4] in this opinion, the Committee examines
how Virginia law addressed foreign lawyer practice prior to their adoption.
Foreign Lawyer Practice Before Rules 5.5 and 8.5 were Amended
Before the Virginia Supreme Court amended Rule 5.5 in March 2009, Virginia’s
Unauthorized Practice of Law Rules regulated the practice of law in Virginia by nonVirginia lawyers.

3

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

UPL Opinions 195 and 201 addressed foreign lawyers practicing in a Virginia law
firm. In UPL Opinion 195, the Committee observed that although Part 6, §I (C) would
authorize some temporary transactional work by a foreign lawyer in Virginia, 3 it did not
allow the foreign lawyer to establish a regular practice in Virginia of advising clients on
matters involving Virginia law. The Committee opined that if a foreign lawyer was
employed in a law office in Virginia, the foreign lawyer’s practice must be limited to
advising clients on matters involving the law of the jurisdiction where the lawyer is
admitted. If the foreign lawyer provides legal services to clients on matters involving
Virginia law, the foreign lawyer may do so only under the direct supervision of a Virginia
licensed lawyer before any of the foreign lawyer’s work product is delivered to the client.
In UPL Opinion 201, the Committee addressed the issue of a foreign lawyer
maintaining an office in Virginia, i.e., practicing in the Virginia office of a multijurisdictional law firm and found that this would not be unauthorized practice if: 1) the
lawyer advised clients on matters involving the law of the jurisdiction in which he/she
was admitted to practice; or 2) the lawyer advised and prepared legal documents for a
client concerning matters involving federal law for cases before a federal court or agency
to the extent the federal matter did not impact Virginia law and to the extent Virginia
legal issues were not involved; and provided “any law firm letterhead stationery or other
public communications identifying the lawyer as practicing in the Virginia firm [denoted]
the limitations on that lawyer’s practice,” i.e. where the lawyer is licensed to practice.
UPL Op. 201 (2001). Outside of the limits of these specific exceptions, “a non-Virginia
licensed lawyer practicing in the Virginia office of a multi-jurisdictional law firm cannot
meet with clients in Virginia to give legal advice involving the application of the law of a
jurisdiction in which the lawyer is not admitted to practice.” Id.
Foreign Lawyer Practice in Virginia Under Rules 5.5 and 8.5
Rule 5.5 recognizes a similar scope of permissible practice; however neither the
rule nor its comments address specifically whether the prohibition against establishing an
office or continuous, systematic presence in Virginia applies when a lawyer is practicing
only the law of the jurisdiction in which he/she is licensed. Comment [4] to Rule 5.5
provides that a foreign lawyer can maintain/establish “an office or other systematic and
continuous presence in Virginia if the foreign lawyer’s practice is limited to areas which
by state or federal law do not require admission to the Virginia State Bar.” (Emphasis
added). The italicized language invites the Committee to consider the state law that had
authorized a foreign lawyer to practice in Virginia before the adoption of the amendments
to Rules 5.5 and 8.5. The cited prior opinions of the UPL Committee were approved and
3

“However the term ‘non-lawyer’ shall not include foreign lawyers who provide legal services in Virginia
to clients under the following restrictions and circumstances: (1) such foreign lawyer must be admitted to
practice and in good standing in any state in the United States; (2) the services must be on an occasional
basis only and incidental to representation of a client whom the lawyer represents elsewhere; and (3) the
client must be informed that the lawyer is not admitted in Virginia.” See order entered September 18, 1996,
by the Supreme Court of Virginia.

4

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

adopted by the Supreme Court of Virginia and, therefore, represent the state law in effect
at the time the Virginia State Bar’s Multijurisdictional Task Force drafted the
amendments to Rules 5.5 and 8.5.
The Committee concludes that the foreign lawyers who are licensed to practice in
other U.S. jurisdictions and based in the multi-jurisdictional law firm in Virginia would
not be engaging in unauthorized practice of law in violation of Rule 5.5 so long as they
limited their practice to the law of the jurisdiction/s where they are licensed, to federal
law not involving Virginia law, or to temporary and occasional practice as authorized by
Rule 5.5(d)(4)(i)-(iii). The UPL opinions cited herein, approved by the Virginia Supreme
Court, defined the scope or permissible foreign lawyer practice and the
Multijurisdictional Task Force’s proposal to amend Rule 5.5 did not overrule, but rather
embraced, the Virginia law that was in effect at that time.
A foreign lawyer may also maintain an office in Virginia to practice the law of a
foreign nation in which the lawyer is admitted if the foreign lawyer is certified to practice
as a “Foreign Legal Consultant” under Rule 1A:7 of the Supreme Court of Virginia. The
Foreign Legal Consultant may also engage in practice in Virginia to the extent authorized
by Rule 5.5(d)(4)(i)-(iv). As Comment [13] to Rule 5.5 explains, the general safe-harbor
provision found in Rule 5.5(d)(4)(iv) applies to foreign lawyers who are admitted to
practice only in a foreign nation.
However, foreign lawyers who are based in Virginia may not practice Virginia
law on a “systematic and continuous” basis. Rule 5.5(d)(2)(i). Such activity would be
conduct in violation of the rules regulating the practice of law in Virginia. Rule 5.5(c).
The foreign lawyer would also be subject to the disciplinary authority of the Virginia
State Bar as provided in Rule 8.5.
Foreign Lawyers Whose Practice is Limited to Matters Involving Federal Law
Foreign lawyers who practice exclusively federal law need not be licensed in
Virginia to maintain an office in Virginia. In Sperry v. Florida ex rel. Florida Bar, 373
U.S. 379 (1963), the U.S. Supreme Court addressed the question of whether a non-lawyer
practitioner duly registered and authorized to practice before the United States Patent and
Trademark Office, but not licensed as an attorney in any jurisdiction, could engage in a
patent practice in a jurisdiction other than the jurisdiction in which the Patent Office is
located, even though the conduct could be considered the practice of law in the other
jurisdiction. The Court’s answer was a clear “yes,” based on the authority granted in the
Supremacy Clause of the U.S. Constitution and the authority granted to the
Commissioner of Patents, in 35 U.S.C. §31, to “prescribe regulations governing the
recognition and conduct of agents, attorneys, or other persons representing applicants or
other parties before the Patent Office.” The Court recognized that pursuant to the
Supremacy Clause of the U.S. Constitution:

5

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

A State may not enforce licensing requirements which, though
valid in the absence of federal regulation, give “the State's
licensing board a virtual power of review over the federal
determination” that a person or agency is qualified and entitled to
perform certain functions, or which impose upon the performance
of activity sanctioned by federal license additional conditions not
contemplated by Congress. “No State law can hinder or obstruct
the free use of a license granted under an act of Congress.”
Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 518, 566.
Id. at 385. Virginia has applied the federal supremacy doctrine in its UPL Opinions and
Unauthorized Practice Rules. See, e.g., UPL Op. 210 (2006) and UPR 9 (“Administrative
Agency Practice”). 4 In UPL Opinion 210, the requestor asked whether it is the
unauthorized practice of law for a foreign lawyer who is a member of a Virginia law
firm, to render U.S. patent advice and render patent law opinions in Virginia to clients
who may be located anywhere in the world. The Committee responded “no,” this
conduct would not be the unauthorized practice of law, citing the Sperry decision:
Based on this authority, an attorney who is licensed other than in Virginia,
who is registered and authorized to practice before the U.S. Patent Office
and who is a member of a Virginia law firm can provide all legal services
and representation related to a patent law practice to all clients needing
such services and representation regardless of where the clients are
located. These services and representation may include rendering legal
advice and/or written opinions for clients on issues such as patent
infringement, patent claim construction, patent validity, or enforceability
of a patent. The patent attorney may provide such advice and opinions to a
client whether related to a matter the patent attorney is actually handling
for the client before the USPTO or not. The patent attorney can conduct
this practice and provide these services while physically in Virginia and
without the supervision or association of a Virginia licensed attorney, so
long as the patent attorney limits his/her activity to the practice of patent
law and is not in any manner attempting to practice Virginia law. Provided
the patent attorney’s practice is limited as described herein, he or she may
also maintain an office in Virginia to conduct that limited practice. If the
patent attorney is a member of a law firm with offices in Virginia and
elsewhere, the extent to which the patent attorney can conduct his/her
practice outside of Virginia will depend upon the unauthorized practice
rules and/or rules of professional conduct in those other jurisdictions. If
the patent attorney provides advice and counsel regarding patent law to a
Virginia client from a location outside of Virginia, this would not be the
unauthorized practice of law in Virginia because the attorney is not

4

Code of Virginia, Vol. 11, Va. S. Ct. R., pt. 6, §I (Unauthorized Practice Rules) (2010)

6

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

physically in Virginia and because he/she is otherwise authorized to
practice patent law.
Comment [4] to Rule 5.5 explains that a foreign lawyer may establish an office or
other systematic and continuous presence in Virginia if the foreign lawyer’s practice is
limited to areas which by state or federal law do not require admission to the Virginia
State Bar. Examples include those lawyers with practices limited to immigration or
military law or who practice before the Internal Revenue Service, the United States Tax
Court, or the United States Patent and Trademark Office. See also Augustine v. Dep't of
Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005) (federal law controls whether a lawyer
not licensed in state may represent claimant and recover statutory fees in federal
administrative proceeding). 5
Therefore, the foreign lawyers in the Virginia law firm may engage in their
limited scope practice on a “continuous and systematic” basis, and may engage in
temporary and occasional practice as permitted by Rule 5.5(d)(4)(i)-(iv), as applicable.
Within the scope of their limited practice, these foreign lawyers may advise clients and
render legal opinions to clients located in other states or countries without violating
Virginia’s prohibition against the unauthorized practice of law.
Note, however, that a “federal practice” does not in itself exempt foreign lawyers
from the reach of state disciplinary authorities or unauthorized practice laws. For
example, the Ninth Circuit made clear in Gadda v. Ashcroft, 377 F.3d 934 (9th Cir.
2004), that federal law did not preempt a state from disbarring a foreign lawyer over
conduct that occurred in the lawyer’s federal immigration practice. Rejecting the foreign
lawyer’s preemption argument, the court pointed out that the Board of Immigration
Appeals’ regulations not only “leave room” for supplementary state regulations, but in
fact condition a lawyer’s ability to practice in immigration court on the lawyer’s
continued good standing as a member of a state bar. To be sure, Rule 8.5 of the Virginia
Rules of Professional Conduct states that “[a] lawyer not admitted in Virginia is also
subject to the disciplinary authority of Virginia if the lawyer provides, holds himself out
as providing, or offers to provide legal services in Virginia.”
In addition, not all types of practices that a lawyer might characterize as a federal
practice fit entirely within the Sperry 6 “federal practice” exemption. For example, a
bankruptcy practice may involve the application of Virginia law to resolve particular
legal issues, i.e., such as the debtor’s homestead exemption and status or priority of
claims or liens. In addition, the local rules of the bankruptcy courts sitting in Virginia

5

See generally Restatement (Third) of the Law Governing Lawyers §3(2) (2000) (lawyer may represent
client before federal tribunal or agency in another jurisdiction in accordance with requirements of tribunal
or agency).
6
Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963).

7

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

require a lawyer to be admitted to the Virginia State Bar to practice regularly in that
court. 7
Although a foreign lawyer is not required to be admitted to practice in Virginia to
practice before the United States Patent and Trademark Office, not all issues regarding
patents fall within the Sperry exemption. For example, the assignment of the patent to a
third party or the organization of a corporate entity to market or franchise the invention
may be subject to the law of Virginia. This could also be the case regarding contracts
with investors in the subject patent. If the legal work related to the patent is outside the
scope of practice before the Patent Office, the lawyer must either be admitted in Virginia
to perform that work or associate with an active member of the Virginia State Bar.
Similarly, a federal procurement practice may involve contractual agreements
with third parties governed by state rather than federal law. Thus, a federal procurement
practitioner may need to be admitted to practice in Virginia to perform this work on a
“continuous and systematic” basis.
Foreign Lawyers Practicing the Law of a Jurisdiction in which They Are Not Admitted
The facts in the hypothetical state that “the firm and these lawyers provide legal
services to clients throughout the U.S. and abroad.” UPL Opinions 158, 195 and 201
would hold that the foreign lawyers could not advise clients on a “systematic and
continuous” basis with respect to matters governed by the law of a jurisdiction in which
the lawyer is not admitted to practice. Applying the cited UPL Opinions, a Marylandlicensed lawyer working in this Virginia firm could not practice “continuously and
systematically” in Virginia advising clients on matters those clients have pending in New
York that are governed by New York law.
The Committee believes that the conclusion reached in the prior UPL Opinions is
overruled by the adoption of Rule 5.5 in at least this respect: whether a foreign lawyer
violates Rule 5.5(c), by advising clients on matters involving the law of a jurisdiction
where the foreign lawyer is not authorized to practice, should be determined by
examining the host jurisdiction’s rules and regulations instead of Virginia law or the law
of the jurisdiction where the foreign lawyer is admitted. Rule 5.5 (c) states:
A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in
doing so. (Emphasis added).
Virginia’s rules are not dispositive of whether the foreign lawyer is engaged in the
unauthorized practice of law in another jurisdiction. The Committee believes that this
language looks to the law of the host state or country to determine if the foreign lawyer is
7

E.D. Va. Local Bankruptcy Rule 2090-1(B) (eff. 12/10/10); W.D. Va. Local Bankruptcy Rule 2090-1(B)
(2010).

8

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

practicing in violation of the regulation of the legal profession in that jurisdiction. For
example, New York law should govern whether a foreign lawyer not authorized to
practice in New York may advise New York clients on matters involving New York law.
The foreign lawyer’s physical presence in Virginia may not be a sufficient basis to apply
Virginia’s rules over New York’s rules governing foreign lawyer practice. Similarly,
whether the Maryland lawyer could advise and counsel a client on a matter pending in
New York on a “temporary or occasional” basis would be up to the rules and regulations
of the legal profession in New York governing temporary practice by foreign lawyers.
Temporary Practice for Contract Lawyers
The scope of practice permitted of a contract lawyer who is not admitted in
Virginia is subject to the foregoing analysis. If a Virginia law firm hires a contract
lawyer to work on a matter involving Virginia law, the contract lawyer either must be
licensed in Virginia or work in association with a Virginia licensed lawyer in the firm on
a temporary basis as permitted under Rule 5.5(d)(4)(i), for transactional work; or Rule
5.5(d)(4)(ii) for pre-litigation activity in a matter in which the contract lawyer reasonably
expects to be admitted pro hac vice. Rules 5.5(d)(4)(iii) and (iv) 8 are generally not
applicable to contract lawyers. If the foreign contract lawyer is hired to work only on
matters involving federal law or the law of the jurisdiction in which the foreign contract
lawyer is admitted, the foreign lawyer does not need to be licensed to practice in
Virginia.
How do the rules define “temporary and occasional practice?” Comment [6] to
Rule 5.5 states:
There is no single test to determine whether a Foreign Lawyer’s
services are provided on a "temporary basis" in Virginia, and may
therefore be permissible under paragraph (d)(4). Services may
be "temporary" even though the Foreign Lawyer provides
services in Virginia on a recurring basis, or for an extended
period of time, as when the Foreign Lawyer is representing a
client in a single lengthy negotiation or litigation. "Temporary"
refers to the duration of the Foreign lawyer’s presence and
provision of services, while "occasional" refers to the frequency
8

Subparagraph (d)(4)(iv) does provide a “safe harbor” which allows a foreign lawyer who is admitted to
practice only in a foreign nation to engage in any nonlitigation practice on a temporary basis when that
activity arises out of or is “reasonably related” to the foreign lawyer's current practice. The rule does not
define “reasonably related,” but suggests in the comments that a matter is reasonably related if: (1) there is
an ongoing relationship with a client; (2) the client has “substantial contacts” with the jurisdiction where
the foreign lawyer is admitted; or (3) the foreign lawyer has developed a recognized expertise in matters
involving a particular body of federal, foreign, or otherwise nationally uniform law. As stated in the text of
this opinion a foreign contract lawyer hired by a law firm from a temporary placement agency would not
likely be able to invoke this “safe harbor.”

9

Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

with which the Foreign lawyer comes into Virginia to provide
legal services.
For example, if a firm hires a contract lawyer who is not licensed in Virginia to work
solely on one specific Virginia matter/case in association with a Virginia-licensed lawyer,
this should be considered “temporary and occasional practice” and allowed under Rule
5.5(d)(4)(i). If a firm hires a foreign contract lawyer to work on several and various
Virginia matters/cases over a period of time, then the foreign lawyer’s practice could be
regarded as “continuous and systematic,” and beyond the scope of temporary practice
contemplated by Rule 5.5 (d)(4), thus requiring this contract lawyer to obtain a Virginia
license.
Conclusion
Foreign lawyers, i.e., non-Virginia lawyers admitted to practice in the United
States or a foreign nation, may practice in a Virginia law firm or may establish an office
or other systematic and continuous presence in Virginia if authorized by Virginia or
federal law. A lawyer admitted to practice in a foreign nation may establish an office or
practice in a law firm in Virginia only if the foreign lawyer is certified as “Foreign Legal
Consultant” pursuant to Rule 1A:7 of the Supreme Court of Virginia. Foreign lawyers
practicing in a Virginia law firm may not advise clients on matters involving Virginia law
except as permitted by Rule 5.5(d)(4). Foreign lawyers who limit their practice
exclusively to federal practices in which admission to the Virginia State Bar is not
required may maintain an office or practice systematically and continuously in Virginia.
Likewise, if their practice is limited to matters involving the law of the state or country in
which they are admitted to practice, foreign lawyers may practice in Virginia on a
systematic and continuous basis. Contract lawyers not licensed to practice in Virginia
who are hired by a Virginia law firm on a temporary basis may practice to the extent
permitted by Rule 5.5(d)(4), or on a continuous and systematic basis if Virginia or federal
law does not require their admission to the Virginia State Bar.
Supreme Court Approved
November 2, 2016
Committee Opinion
September 19, 2011

10