Posted: December 30, 2005
Rules Governing the Utah State Bar
Rule 20. Qualifications for admission of house counsel applicants.
Petition to the Supreme Court.
Rule 20 of Chapter 18. Rules governing admission to the Utah State Bar. The new rule will provide guidance about what an out-of-state licensed lawyer who works in-house in a Utah business or non-profit organization is permitted to do. The draft rule is presented with the petition to the Supreme Court. The attachments referred to in the petition are available from the Supreme Court or the Utah State Bar.
This entry was posted in -Rules Governing the State Bar.
I have been in-house counsel for over 6 years with a Utah business and a member of the Utah Bar since 1988. The rule in general is long over due and the approach taken in the rules will accomplish what is required to meet the realities of the business world and adequately satisfy the concerns of managing the practice of law in this State.
However, the notice required by Rule 20-9(b) that requires the statement on letterhead, business cards, etc., that the attorney is not licensed in the state will cause confusion and be an unnecessary distraction to the professional capability of the attorney. I strongly recommend this rule be deleted.
The rule looks good. I am not sure why the Court would not allow House Counsel to represent their single client employeer in judicial / administrative proceedings though. In my view, this may be a bit rigid.
This is a good rule, and will make it easier for Utah companies to recruit in house counsel at the national level, including from California which does not have reciprocity with Utah for bar admissions.
I believe many other States have already adopted laws very similar to this, and this law will bring Utah up to date with them.
Finally, I think this law will bring many more in house Utah attorneys “within the system” who are currently operating in limbo because they are licensed in another State, but not in Utah, and don’t have the time to take 6 months off of work to study and pass the Utah bar. But these attorneys should still be bound by certain rules, and this rule would allow them to reasonably comply with the rules without taking the Utah bar exam.
Personally, I feel this rule is an excellent “fit” to a situation that has been ignored to everyone’s discomfort. I congratulate the formulators on a concrete and clear proposal.
Overall, these rules and appropriate and well-drafted. My only suggestion is to revise lines 2-3 to read, “An attorney admitted to the Bar as House Counsel shall limit his or her representation to the business of his or employer and the employer’s Affiliates.” “Affiliates” can be defined by cross-reference to other Utah Code sections defining Affiliates as being controlled by, or under common control with, the subject entity.
Bravo, a rule to deal with a difficult and common situation. Those behind the proposed rule are to be congratulated for dealing with the subject in a balanced way.
My only substantive question is, why does the proposed rule not deal more directly with how an attorney who comes into the State of Utah more than one year after adoption of the rule to act as house counsel can secure a House Counsel license and how long he or she has to do so? It also seems to me that the rule should authorize such a newly-arrived attorney to act as house counsel, subject to the provisions of the rule, while his or her application is pending without concern about a UPL claim.
Rule 20-4 is appropriate for house counsel in the state when the rule is adopted or who arrive in the state early enough during the one year period after its adoption to apply for a House Counsel license during that period. However, if I read the rule correctly, the effect of Rule 20-4, as presently written, would be that house counsel who arrive in Utah after the one year period and who apply for a House Counsel license could not do so without taking the risk that he or she “may be referred for investigation for the unauthorized practice of law” if he or she has practiced as house counsel in the state before securing a House Counsel license — something that most of them will do considering that it may take as long as 180 days for a House Counsel license to be issued once it is applied for.
Perhaps Rule 20-4 can be expanded to cover such a situation by giving newly arrived House Counsel a reasonable period after their arrival in Utah during which to apply for a House Counsel license and providing (as Rule 20-4 will do for House Counsel in the state when the Rule is adopted) that if they apply for a House Counsel license on a timely basis, the House Counsel license will not be denied solely because they failed to earlier seek admission to the bar or to secure a House Counsel license.
A few substantive nit comments on the draft rule:
a. Line 36: Is there some reason why the word “and” does not appear at the end of the phrase?
b. Line 62: Is there some reason why the word “and” does not appear at the end of the phrase?
c. Line 81: The phrase ” practice law in all jurisdictions” might better read “practice law in any jurisdiction.”
d. Line 98: “Termination from residence” might better read “termination of residence.”
e. Lines 106-110. Subpart (e) of Rule 20-10 does not appear to fit with subparts (a) – (d) of the rule and might be better structured as Rule 20-11 (which would require renumbering of subsequent rules); and should not the word “or” appear before the last item in the (a) – (d) list?
f. Line 111. The phrase “An attorney terminated” might better read “An attorney whose House Counsel license is terminated.”
g. Line 139: Is there some reason why the word “and” does not appear at the end of the phrase?
BJG
James Bramble and I are both members of the Utah Bar, and we offer our comments in support of the proposed new Rule 20. We believe the rule represents a balanced and common-sense approach to address the practical realities of today’s in-house practice. Corporations with in-house legal departments routinely seek attorneys with in-house experience, and a rule such as this opens the door for companies to recruit at a national level to find the most qualified and talented legal professionals while preserving for the state an adequate and reasonable means to ensure that house counsel comply with established rules of practice. Moreover, this type of admission rule allows companies that operate independent divisions or subsidiaries outside their state of incorporation to readily relocate house counsel instead of forcing them to deal with the often burdensome and resource intensive process of recruiting new house counsel for the local entity. The company retains the benefit of working with its trusted counsel with whom it has an established relationship, and the state retains the right to oversee the attorney’s practice of law. This rule offers a win-win compromise for both business and the bar. Many states have already adopted similar rules of practice, and it is in the best interests of the State of Utah to adopt Rule 20.
Kudos to the Admissions Committee of the Bar and Bar Staff for proceeding with this matter. I believe that this is an important addition to our Admissions Rules.
I agree with comments of Doug Whitehead concerning the requirement of disclosing the limited license on letterhead, business cards, etc. I have dealt with in-house attorneys for most of my career and have worked as in-house attorney for the past nine years. I have never seen a similar disclosure. Unlike attorneys who deal with the general public, those who deal with in-house attorneys are not concerned with the limitations of their licenses.
This provision is too insignificant to enforce. The limited resources of the Office of Professional Conduct should not be devoted to enforcement of this provision. I also believe that most prospective in-house attorneys will view this as a silly requirement and it will place the Bar in an unfavorable light. We’d like these people to be more involved in the Bar and not hold the Bar in low regard. Furthermore, the majority of communication of in-house attorneys is via email. It is hard for me to believe that the disclosure would be included in emails.
To: Utah Supreme Court
From: Association of Corporate Counsel (ACC)
Re: Proposed Amendments to Utah Court Rules
Date: February 24, 2006
Please accept this comment letter on behalf of the Association of Corporate Counsel (ACC) and our members practicing in Utah. ACC represents the interests of over 19,000 members in the United States and 58 countries.
ACC generally supports the adoption of Utah’s proposed amendments to Utah Court Rule 20, Chapter 18, and we commend your bar and its leaders for the work they’ve obviously invested in this important process.
ACC supported Utah’s recent adoption of ABA Model Rule 5.5(d)(1) which granted authorization for full-time in-house counsel who are in good standing in their state of admission to practice exclusively for their employer-client in Utah. ACC generally advises against the adoption of registration rules for in-house practitioners once a jurisdiction has adopted a version ABA Model Rule 5.5. However, we understand that many jurisdictions are uncomfortable with a 5.5(d)(1) authorization that is unaccompanied by a registration process; and so we support those registration rules that are adopted in conjunction with 5.5(d)(1) so long as they avoid burdensome application requirements, additional testing which does little to increase the competence of an experienced lawyer who already is likely at the top of their practice expertise, and the adoption of unnecessary or exorbitant fees. Utah’s proposed amendments to Utah Court Rule 20, Chapter 18 avoid these concerns, but we offer two suggestions that we believe would make the rule better: first, we feel that the 20-9(b) letterhead requirement is unnecessary and impractical; and, second we note the rules fail to authorize pro bono services by in-house counsel who are registered under their provisions.
Letterhead Requirement Concerns: ACC requests that the Court remove the requirement that “All business cards, letterhead and directory listings, whether in print or electronic form, [shall state that counsel is] admitted to practice in Utah only as House Counsel or the equivalent.” This requirement is not mandated by Rule 5.5(d)(1), and fails to further any legitimate public policy goal. This designation, if affixed to the registered counsel’s work, will be confusing to the public and internal corporate clients, as well as unnecessarily discriminatory and demeaning to lawyers “branded” with a title that may diminish the executive title they’ve worked hard to obtain and are now licensed under the rules to carry. Requiring use of such titles conveys the bar’s sense that there are two classes of lawyers in the state: those who are legitimate, and those who are questionable and come with some kind of a warning label. Clearly, the passage by your state of Rule 5.5(d)(1) which authorizes these in-house lawyers to practice in the state was premised on your belief (which we share) that these lawyers are anything but questionable in their qualifications and professionalism.
Rule 20, Chapter 18 lawyers are subject to the same professional rules and disciplinary authority at the bar, fulfill the same MCLE requirements, and will join the same professional organizations. They will represent their clients side by side with other regularly admitted lawyers in the state. Their clients already know whom they’ve hired and obviously have faith in their skills and qualifications. The only professional difference between the operation and status of these lawyers and their regular-admission colleagues is the bar’s prohibition on the registered in-house counsel’s ability to appear in court, which is a matter of the state’s preferences and not even a reflection on these lawyers’ ability to litigate. Since they are not holding themselves out for retention (and thereby possibly misinforming potential clients of their lack of litigation authorization under the rules), we fail to see how the bar, the public, the courts, or their clients are in any way helped by the inclusion of this brand upon their professional status. ACC believes that this requirement is without merit and serves to contradict the very purpose of the rule: to ensure that all lawyers practicing in the state are treated and regulated equally.
Finally, we note the lack of a clear authorization to allow pro bono in the proposed rules. ACC believes that pro bono legal services are the professional responsibility of every lawyer. Since most pro bono work is essentially local in nature, in-house counsel working in Utah will find their most meaningful opportunities for pro bono representation at the local bar. Counsel authorized to practice under 5.5(d)(1) and Rule 20, Chapter 18, should be allowed to provide these important volunteer services: it would be a waste of fine legal talent and a disservice to the public, which needs more “not less” volunteer legal service from lawyers.
We urge you not to strip in-house lawyers of their ability to return services to the public that invests in their practice as professionals, especially when such a decision would be at the expense of the underserved communities in your state. If there is concern that opening this category of services to non locally licensed in-house counsel could lead to abuses, then our suggestion is to offer it to in-house counsel working under the auspices of state or locally licensed pro bono/legal services providers.
We appreciate the opportunity to comment on the proposed rule under and encourage you to contact us should you require any further information or clarification of our position. Thank you in advance for your consideration of the needs and concerns of corporate counsel working in the state.
Sincerely
Susan Hackett
Senior Vice President and General Counsel
202/293-4103, ext 318
hackett@acca.com
Line 5 of the proposed rule prohibits appearence of House Counsel before a “court of record”. It leaves open the question as to whether the person could appear before “courts not of record” which in Utah includes all justice courts. That seems to me to be an odd distinction if indeed it is an intentional one. This draft may allow House Counsel to represent the business or possibly its employees before justice courts in low dollar civil cases such as collections or in criminal enforcement of any ordinance in which the business or possibly the employee is a defendant. That could amount to a considerable amount of court work in some cases.
If such is not the intent, I suggest inserting on line 5 after the words “court of record”, the additional words “or court not of record”.
If the wording was intentional, I still make the same suggestion.
Thank you for your consideration,
Paul W. Boyden
Executive Director
Statewide Association of Prosecutors
The Supreme Court recently approved new Rule of Professional Conduct (“RPC”) 5.5(d)(1), which reads: “A lawyer admitted in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services in this jurisdiction that . . . are provided for the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.”
In important respects, the Utah State Bar’s proposed Rule 20 of the Rules Governing Admission to the Utah State Bar is inconsistent with the spirit and the letter of RPC 5.5(d)(1).
The Bar’s proposal would have the effect of requiring an in-house counsel to satisfy nearly every requirement of a lawyer seeking to become a full-fledged Utah lawyer except for passing the Bar Examination. This is not the spirit—nor the letter—of RPC 5.5(d)(1).
For example. under Rule 5.5(d)(1), a “foreign” lawyer is permitted to accept an in-house position with a Utah corporation and immediately take on the duties of advising that entity of its legal rights and responsibilities. Under the Bar’s proposal, the lawyer would have to wait up to six months (perhaps more) under Rule 20-3(b) before he could provide legal assistance to the client, notwithstanding that this is completely at odds with RPC 5.5(d)(1), which provides for no such idle period and could work a major hardship on a lawyer or the lawyer’s employer.
Another example: Practicing under RPC 5.5(d)(1) does not involve a residency or office-maintenance requirement. Proposed Rule 20-2(e) imposes such a requirement. This would apparently preclude a company from bringing to Utah one of its New York or California attorneys, for example, for a three-week intensive project. A residency, office-maintenance provision could substantially restrict the ability to practice relative to the Rule 5.5(d)(1) “license” and serves not identifiable public policy.
Yet another example where the Proposed Rule has overstepped reasonable regulation: There is no administrative or policy reason that the in-house counsel must be “employed exclusively as House Counsel” by the employer, as Rule 20-2(f) would have it. Wouldn’t this preclude XYZ Corp. from hiring an Illinois lawyer as its General Counsel and Secretary? Would a lawyer be precluded from having ancillary business-management duties with his employer? Apart from whether it is a good use of a lawyer’s skills, what’s the purpose of constraining a company in its use of its lawyer employees? Does the provision mean the lawyer could not “moonlight” as an adjunct college professor or in some business totally unrelated to the practice of law?
It is quite clearly reasonable for an in-house counsel under RPC 5.5(d)(1) be subject to reasonable regulation: for example, to register with the Bar and pay dues and be subject to Utah Bar disciplinary authority, as for any other practicing Utah lawyer. But the intent of RPC 5.5(d)(1) is to recognize that a lawyer who has established law-practice credentials in another jurisdiction should have those credentials, by and large, recognized in Utah if the lawyer’s services are to be confined to the lawyer’s employer. In its most important sense, RPC 5.5(d)(1) is a recognition of the growing national nature of law practice, that the days of provincial barriers to practicing law are coming to an end, and that today’s world should accommodate the mobility of lawyers in corporate practice.
In this regard, the Court took a major step forward in adopting RPC 5.5(d)(1) and facilitating the ability for corporations and other legal entities to exercise their prerogatives of employing counsel of their choice without implementing undue hurdles and establishing yet another bureaucratic process. Many of the provisions of proposed Rule 20 would constitute a major retrenchment from RPC 5.5(d)(1).
This proposal should go back to the drawing board, with instructions to propose a minimal set of regulatory rules that will facilitate the kind of multi-jurisdictional practice the was meant to be permitted by Rule 5.5(d)(1) of the Rules of Professional Conduct.
(Side note: In addition, RPC 5.5(d)(1) and any variation on Proposed Rule 20 should be coordinated with Chapter 13a of the Court’s Rules, Authorization to Practice Law. The base-line for practice of law is a “licensed member of the Utah State Bar.” Any other person who engages in the practice of law must either fit one of the exceptions in Rule 1.0(c)(12) or be considered as engaged in the unauthorized practice of law. In-house practice should either be added to the list of exceptions in Rule 1.0(c)(12), or there should a statement in an appropriate rule that a person who has qualified as House Counsel is considered a “licensed member of the Utah State Bar” for purposes of Rule 1.0 of Chapter 13a.)
I join Mr. Boyden’s comment, and add the following comments:
1. Lines 5-6 of the draft rule: Misdemeanor justice court criminal actions are not always “low dollar” cases. One class B misdemeanor for a corporation carries up to a $5000 penalty plus an additional 85% surcharge. Multiple misdemeanors may be charged. The language should refer to both courts of records and courts not of record.
2. Lines 5-6 of the draft rule: Administrative judges and hearing officers frequently require Utah bar admission or admission pro hac vice for attorneys representing corporations based on Tracey-Burke Assoc. v. Dep’t of Employment Security, 699 P.2d 687 (Utah 1985) and Hartford Leasing Corp. v. State, 888 P2d 694 (Utah Ct. App. 1994). These cases are not always about small sums of money and frequently involve subpoenas, written discovery, and depositions. Attorneys who are involved in litigation governed by the Utah Rules of Civil Procedure should be familiar with the Utah rules and practices or should associate with an attorney who is. Lines 5-6 should also reference administrative hearings.
3. The petition suggests that “ a limited license makes sense since a house lawyer is under the scrutiny of a relatively sophisticated employer” and that “a sophisticated client is often in the best position to make an informed choice about which attorney can handle his or her legal work in the most economical and efficient manner.” Petition p. 5. Not all corporations, associations, business and “other legal entities” are sophisticated. It is not clear that this rule is limited to corporations, associations, and businesses that are also legal entities. Lines 24-25. I would make that clear. The rule might also require that the employer is licensed to do business in Utah.
Paula K. Smith
As you consider comments regarding proposed Rule 20, please take into consideration that I concur with and support the comments made by Mr. Gary Sackett and the Association of Corporate Counsel (“ACC”), particularly with respect to Rules of Professional Conduct 5.5(d)(1) and the proposed rule’s house counsel disclaimer requirement for letterhead and business cards.
In addition, to the comments of Mr. Sackett and the ACC, I would like to mention that proposed Rule 20 and some of the comments by others could be read to conclude that house counsel should not be allowed, even under pro hac vice admittance, to appear before a court of the State. While I am of the general opinion that there is good rational to permit house counsel to represent their employers before the courts without pro hac vice admittance, at a minimum, Line 4-5 of proposed Rule 20 should be clarified to read, “Counsel shall not: (a) Appear before a court of record, unless admitted pro hac vice, as an attorney of counselor in the State of Utah;”
In the spirit of brevity and consistency, I also recommend that the sentence starting on line 126 with “Any person who has been issued,” through the end of the proposed rule on line 148, be deleted in its entirety and replaced with “Any person who has been issued a House Counsel license may qualify for full membership by following the requirements under the Utah State Bar Rules Governing Admissions.”
Your consideration of these comments is appreciated. If you have any questions, please feel free to contact me.
Richard Stapler
Vice President and General Counsel
Kern River Gas Transmission Company
801.937.6068
richard.stapler@kernrivergas.com