Legal ethics

Kudos to the TN BPR – Giving Public Comment Its Due

So, you can consider this my “commitment” to always writing about new Formal Ethics Opinions that get released in Tennessee when they go through the public comment process. I put commitment in quotes because, at this point, it is only the second time it has ever happened.

But it’s the first time where public comments and criticism have made a difference for the better.

Last year, Tennessee’s Board of Professional Responsibility put out a proposed ethics opinion addressing whether an in-house counsel residing outside of Tennessee but working for an employer with a Tennessee physical presence would be somehow engaging in the unauthorized practice of law in Tennessee if not licensed in Tennessee or registered as in-house counsel under Tennessee’s provisions.

The draft opinion was highly problematic. During the period for which public comment was pending, the Tennessee Bar Association filed a comment pointing out the number of ways that the opinion, if issued as is, was problematic.

At the top of the list was the way that the opinion was written as if RPC 5.5(c) in Tennessee somehow did not apply to in-house lawyers. In the words of the TBA:

To the extent these references suggest that an out-of-state in-house lawyer who occasionally provides advice relating to Tennessee law engages in the unauthorized practice of law in Tennessee solely by doing so, the Committee believes the opinion is both out of step with the realities of corporate counsel practice and directly inconsistent with Tennessee law – specifically, Rule of Professional Conduct 5.5(c).  The opinion does not acknowledge that an out-of-state lawyer who does not have an office or other systematic presence in Tennessee is permitted to provide “legal services on a temporary basis” in Tennessee if the lawyer complies with Tennessee Supreme Court Rule 8, RPC 5.5(c).  The Committee is aware of no authority suggesting that the provisions of RPC 5.5(c) do not apply to in-house counsel as well as other lawyers.

Along with its criticism, as feedback, the TBA also offered a revised version of the opinion that the BPR could enact that would not suffer from the same problems.

Near the end of the year, with absolutely no publicity, the BPR adopted a revised version of the opinion – 2022-F-168 that tracked the proposed changes from the TBA.

The lack of publicity was less than ideal because, for example, anyone who would have attended by Ethics Roadshow events in Memphis, Nashville, Knoxville, and Chattanooga would have heard me talk about the controversy and the uncertainty of waiting to know what the BPR would do, when in fact the BPR had already fixed the opinion and adopted it on December 9, 2022. The lack of publicity is also vexing because it makes little sense to put something out for public comment, get public comment, change the opinion in response to the public comment, and then not make much effort to let anyone know that the new opinion has now actually been put out.

But the lack of publicity is where my criticism of the BPR on this opinion begins and ends. The opinion as released is pretty decent guidance under the rules as they presently exist.

Specifically, the summary at the outset of the conclusion tells the story:

A lawyer who resides and is domiciled outside of Tennessee, who is working remotely as full-time, in-house counsel for an organization that has its principal place of business in Tennessee (and offices in other states), who is admitted to the practice of law only in a jurisdiction other than Tennessee, and who is not registered as in-house counsel in Tennessee is not engaging in the unauthorized practice of law because these circumstances alone do not establish a “systematic and continuous presence in Tennessee for the practice of law” as in-house counsel unless the lawyer is engaging in conduct that would evidence an indicia of a presence in Tennessee for the practice of law.

That is the advice I’ve previously given when consulted by in-house counsel in those exact circumstances and so I am grateful to the BPR for getting to the correct answer and being open to constructive feedback.

I’m also grateful that, in so doing, the BPR has now embraced the analysis of ABA Formal Opinion 495 which addresses the issue of remote practice on a much broader scale:

The American Bar Association issued Formal Ethics Opinion 495 in December 2020, which provides guidance for a lawyer who is remotely practicing law of the jurisdiction or jurisdictions in which the lawyer is licensed while the lawyer is physically present in another jurisdiction in which the lawyer is not admitted to practice.

That opinion discusses the meaning of the words “systematic and continuous presence”.  “Words in the rules, unless otherwise defined are given their ordinary meaning.  ‘Establish’ means ‘to found, institute, build, or bring into being on a firm or stable basis.’  A local office is not ‘established’ within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.  Likewise, it does not ‘establish’ a systematic and continuous presence in the jurisdiction for the practice of law since the lawyer is neither practicing law of the local jurisdiction nor holding out the availability to do so.  The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law.  Conversely, a lawyer who includes a local jurisdiction address on websites, letterhead, business cards, or advertising may be said to have established an office or a systematic and continuous presence in the local jurisdiction for the practice of law.”

With this guidance within the guidance to in-house counsel in hand, lawyers licensed outside of Tennessee trying to determine whether they can remotely practice from a house or private office inside of Tennessee will have a better sense of where the lines are currently drawn.

And, although as I’ve written before the entire premise behind certain aspects of the way we regulate cross-border practice needs to be overhauled, for as long as we continue to work under the current structure the analysis proffered in ABA Opinion 495 is the common sense and practical way to go.