One way the “practice of law” might just be like pornography.

No, not in any of the ways that would be fodder for jokes or insults directed at lawyers.  This is actually another follow-up post of thoughts on an aspect of the BLE’s petition for changes to Rule 7 that I first discussed here.  And despite the “click-bait” nature of the title of the post, there is a legitimate point to be made (at least I think so).

The answer is that the best definition of each may just be what Justice Potter said as to one of them — “I know it when I see it.”

As part of its proposed revisions to Rule 7, the BLE now seeks to make a wholesale replacement to the existing language in Section 5.01 that currently adds things to Tennessee’s statutory definitions of “law business” and “practice of law” for purposes of determining eligibility for comity admission.  Those two terms are defined in Tenn. Code Ann. 23-3-101, but the focus there is on acts the state legislature has decreed are the unauthorized practice of law if performed in Tennessee by people without law licenses.  I do not think many would argue that the statute provides comprehensive definitions of the things lawyers do by any stretch.

Currently, Section 5.01 adds to those definitions in ways that may not be perfect but hardly seem broken.  Since Section 5.01 focuses on lawyers who would be trying to become licensed in Tennessee, it cannot just rely on our state’s statutory definitions of the terms since those necessarily wouldn’t apply or be the same as the definition of such terms in the lawyer’s home jurisdiction.  The rule currently adds several, entirely uncontroversial endeavors that qualify: full-time employment in private or public law practice, being actively engaged in teaching law full-time as a law professor, and then gives the BLE discretion to consider other types of full-time employment requiring application of legal knowledge and interpretation of the law.

Now, the BLE seeks to have all this changed with the creation of a new defined term of “active practice of law” that appears to me to very curiously lessen the BLE’s discretion.  The first subpart of the BLE’s proposed section on “active practice of law” appears fine as it reiterates that working as a private practice lawyer, public practice lawyer, judge, judicial law clerk, or professor fits, but the second subpart then raises real questions.

It is in that subpart that the BLE adds this language:  “Notwithstanding the foregoing, the ‘active practice of law’ is further defined to require that at all times in the durational period the applicant has: (1) held a law license in ‘active’ status; (2) spent one thousand (1,000) hours or more per year engaged in the practice of law, for each of the required five years in the durational period; and (3) derived at least fifty percent (50%) of non-investment income from the practice of law.”  Nothing about the language of this limitation is clear that it would apply only to the second subpart.  Thus, this definition of “active practice of law” would appear to modify all of the categories.

As to judges, why should it matter if they have their law license in their home jurisdiction in an “inactive” status either to save money or because they aren’t allowed to practice law in their home state while serving as a judge for instance?  For other categories, why should the concept of 1000 hours of work be set in stone as a benchmark for whether you are in the “active” practice of law in a calendar year?  Perhaps that makes sense if you work under a strict billable hour regime, but what if you have only a plaintiff’s practice and handle just 4 or 5 cases in a year, win each of them, and do so in an efficient way where you only worked say 800 hours that year?  Is the BLE really going to stake out a position that such a year should not count because that wasn’t the “active” practice of law?  Would it matter if the hypothetical lawyer was taking it easy that year because she’d worked 2000 to 2500 hours for several preceding years, was flush with cash, and now being more selective in choosing new cases to take on?  And, how exactly is a lawyer who doesn’t keep time records (as some plaintiff’s lawyers do not) ever going to prove whether they worked 1,000 hours in a given year?

Although all of this presumably only matters for purposes of calculating the 5 of last 7 years requirement so as to be eligible for comity admission (i.e. without having to sit for the bar examination), the wisdom of the BLE’s proposal is something I am presently struggling with.  And, at this point then it seems like wholly unnecessary micromanagement of something that is far too difficult to define in a rule.

 

More on the BLE’s petition for rule changes

This will be the first of several more in-depth entries focused on the Board of Law Examiners’ petition seeking some changes to Tenn. Sup. Ct. R. 7, which deals with a collection of licensing issues in Tennessee.  (This will also be one of those less frequent posts where I may not adhere strictly to my commitment to tell you what you need to know in a bite-sized portion requiring 6 minutes or fewer of your time.)

One of the two headline changes proposed in the petition is the creation of a new amnesty period for in-house counsel registration.  If adopted, Section 10.04 of Rule 7 would be amended to provide that any in-house counsel not currently licensed or properly registered in Tennessee would have another 180 days from the date the rule change is adopted to put in the proper paperwork to obtain a registration license.

Some background of note: it has now been almost 13 years since the Tennessee Supreme Court made clear that a lawyer who was working as in-house counsel for a company based in Tennessee needed to be licensed to practice law in Tennessee.  Crews v. Buckman Labs, 78 S.W.3d 852 (Tenn. 2002).  Despite that state of affairs, in 2009, it was known that there were many in-house counsel not in compliance and revisions to Rule 7 and to RPC 5.5 were adopted effective Jan. 1, 2010 that would permit in-house counsel licensed in another jurisdiction to obtain a registration license under which they would only be permitted to represent the company that employed them but would not have to otherwise become fully licensed.  In order to make it easier for in-house lawyers already in Tennessee to get into compliance, those folks were given 180 days from adoption of the new rule to get their paperwork in and have their past transgressions absolved.  These new rules also provided that, for in-house counsel coming to Tennessee in the future, they would have 180 days from the date they commenced their employment to get their application papers in for the in-house registration certificate.

Well, fast forward to the present day and for a variety of reasons, there are again quite a few in-house counsel in Tennessee who did not get their registration paperwork in within 180 days of commencing employment with a company in Tennessee.  Some of the most sympathetic examples are lawyers who wanted to become full members of the bar and who submitted applications to be fully admitted by comity, not realizing that such applications were likely doomed because there was no corresponding 180-day grace period for that process.

Thus, faced with this situation in which there are quite a few in-house counsel who are gainfully employed by corporations in Tennessee that very much want these people to be their lawyers, the BLE has made this proposal that would give those folks a new 180-day window to turn in registration license paperwork and have their past transgressions absolved.  I expect that this aspect of the BLE’s petition will be met with widespread support.

This proposal also contains two further things of note.  The first is the BLE’s insistence that they will make positive efforts to educate in-house counsel on this situation and about the need to get the paperwork in within 180 days.  The second is the proposal to move existing language from Comment [17] to RPC 5.5 up into the black-letter as a new RPC 5.5(d)(3).  Simultaneously, an additional sentence is proposed that would go some distance in making clear that, for in-house counsel, there really is no other choice (if sitting for the bar examination is not desirable) than to first obtain a registration license and then, if something more is desired, to seek to get full admission by comity.

Board of Law Examiners – March 12, 2015 petition to overhaul Rule 7

Depending on what type of law practice setting you work in, you may or may not be aware of the several ways in which Tennessee’s system for licensing lawyers is a bit … I believe the technical word is “broken.”

Yesterday, the Board of Law Examiners filed a petition to seek to have the Tennessee Supreme Court fix some of the issues.  I will certainly be writing more, and more extensively, about this in the near future, but among the highlights of the BLE’s proposal is the creation of an additional 180-day amnesty period for in-house corporate counsel to register and a proposal that would permit some form of practice pending admission availability for attorneys seeking comity admission though not to the robust extent under theABA Model Rule.

The BLE’s petition has not yet been put out for public comment, but when that happens, it will likely result in a substantial amount of comment and discussion.