Harmonizing practice pending and pro hac vice provisions in Tennessee

The Tennessee Supreme Court issued an order last week implementing a helpful change to our rules on pro hac vice admission so that lawyers who are taking advantage of recent rule changes in Tennessee to permit practice pending admission can also be admitted pro hac vice in a lawsuit on behalf of a client.  You can read the order here.

The gist of the issue is that effective January 1, 2016, our Court adopted a rule (located at Section 5.01(g) of Tenn. Sup. Ct. R. 7) to permit a lawyer licensed elsewhere who has moved to Tennessee and has applied for comity admission to be able to practice in Tennessee for up to 365 days while awaiting action on their application for admission.  Until the adoption of this latest order, however, the way our rule on pro hac vice admission (Tenn. Sup. Ct. R. 19) was written, someone who was a resident of Tennessee simply could not seek pro hac vice admission in our state courts.

This order fixes that situation for folks operating under practice pending admission by expressly mentioning that rule as an exception to the residency restriction.  This change certainly seems like the appropriate thing to do.

The next related questions though might be whether the same rule might need to be further tweaked to permit those in Tennessee who are practicing law as registered in-house counsel under Section 10.01 of Rule 7 or under the new rule as to temporary licenses permitted for spouses of those in military service to seek pro hac vice admission in litigation matters.

My initial instinct was that there might not be a very good argument for treating either of those categories differently than those blessed only by practice pending admission.  But with a bit more reflection, the fact that pro hac vice admission by its very nature is supposed to be a short-term, limited repetition event might be enough of a justification for a distinction as to in-house counsel.  Practice pending status can only go on for the 365 days whereas an in-house counsel can rely upon a registration license in lieu of a full license for their entire career.  As to the military spouse rule, I’m unable to come up with a distinction of note.

(At certain times, world events make it feel a bit silly to write about legal ethics matters.  This is one of those times.  Like most grown adult human beings, I have strong opinions on a lot of topics, but I try my best not write about things unless I can at least find some plausible way to tie them back to core questions of legal ethics and lawyering.  So, in this superfluous paragraph, I will only say that I happen to be the Treasurer of the Tennessee branch of a non-profit organization much in the news of late, and if you believe in the work it does — and particularly if you live in Tennessee — feel free to donate what you can afford.)

Tennessee Supreme Court takes long-awaited action to smooth admissions problems

Yesterday, the Tennessee Supreme Court entered an order that addresses a variety of issues I have written about on a number of prior occasions.  You can take in the entire order setting out all of the new provisions here.  In addition to making a spot change to Tennessee Supreme Court Rule 6 and a revision to RPC 5.5(d), it replaces Tennessee Supreme Court Rule 7 in its entirety.

In almost all respects, the Court’s action offers the hoped for outcomes on a variety of issues plaguing Tennessee’s admission system for lawyers licensed in other jurisdictions.  The contents of the new rule becomes effective in just 11 days, on January 1, 2016.

As to comity admission, the Court has removed the requirement it had added into Section 5.01 that conditioned eligibility for comity admission upon having both applied for it, and being approved for it, before moving to Tennessee to be employed as a lawyer.  Effective January 1, 2016, Section 5.01 will no longer say anything along those lines (and in fact does not even explicitly require the application be submitted before arrival in Tennessee).

The Court also had adopted a robust practice pending admission provision that will permit applicants awaiting a ruling on their comity application to practice law in Tennessee for up to 365 days.  The provision is largely patterned after the ABA Model provision on the topic and requires the applicant to “associate[] with a lawyer who is admitted to practice in Tennessee.”

With respect to in-house counsel registration, the order provides a second round of amnesty so that any lawyers, currently employed as in-house counsel in Tennessee but who are not licensed here and did not get properly registered before now, can have any prior sins in this respect forgiven as long as they get an in-house counsel registration application filed within 180 days from January 1, 2016 (June 30, 2016).  Accompanying this change is a revision to RPC 5.5(d) to add a (3) that more prominently explains the repercussions in the future for any in-house counsel who fails to make timely advantage of this amnesty (and for any in-house counsel who may arrive in Tennessee in the future and miss the 180-day registration deadline).  The Court also took this opportunity to make explicit what was previously just strongly implied — that an in-house counsel who gets their application in timely (i.e. on day 175 for example, need not worry that the work they do during days 1-174 is somehow UPL.

The Court also took favorable action on a request made to make it easier for the spouses of those in military service to become admitted in Tennessee.  The Court took something of a compromise position between a proposal made by military spouses and a counter-proposal offered by the TBA – offering a 2-year initial license period with the ability to renew for additional 1-year periods provided the initial requirements for obtaining the license remain in place.

Additionally, and importantly, for a number of lawyers with comity applications that have been pending or on hold or otherwise stuck in the system while these long discussed changes have been under consideration, the Court has adopted a specific provision addressing the transition period from the old rule to the new rule as to comity admissions and that reads as follows:

(i)  Transitional Provision.  From January 1, 2016, and continuing through December 31, 2016, the Board is authorized to exercise its discretion in adjudicating pending applications for comity admission that have not been finally ruled upon as of the effective date (January 1, 2016) of this revised Rule.  Such discretion includes waiving or altering time periods or otherwise varying the provisions for admission by comity, and the Board shall tailor such discretion toward granting the applicant’s application for comity admission as long as the Board otherwise reaches the conclusion that the lawyer possesses the character and fitness to practice law in this jurisdiction.

While the transitional provision is very helpful, it does not go quite as far as what was proposed by the TBA.  The TBA had sought for the Court to adopt language that would have read as follows:

From and after [January 1, 2016] and continuing until [December 31, 2016], the Court specifically directs the Board of Law Examiners to use discretion in adjudicating pending applications that have not been finally ruled upon, including waiving or altering time periods or otherwise varying provisions, to tailor such discretion toward granting the applicant’s application for comity admission as long as the Board otherwise reaches the conclusion that the lawyer possesses the character and fitness to practice law in this jurisdiction.

The difference likely does not affect a horde of folks but there may be lawyers out there who had held off filing comity applications while awaiting a ruling who now may wonder whether they must apply in the next ten days to take full advantage of these changes.  It also may be less than clear whether any lawyers with currently pending comity applications but who already have offices in Tennessee will be permitted to take full advantage of the practice pending admission provision because of the specific language of the transition provision.  Thus, there may be situations out there that will still fall within some gaps in the working of the rule moving forward.  (There also are some grounds to criticize other aspects of the rules requirements on public policy grounds — questions such as whether the change in the rule to now require someone who went to law school in a foreign country but wishes to sit for the Tennessee Bar exam has to first obtain an LLM in the United States are too restrictive.)

But, on the whole, there can be no question that the entry of the Court’s order yesterday is a good outcome.