Issue: Right to Practice
Significance: In-house lawyers need the flexibility to practice across boundaries. They need to practice where their employers and clients need to place them, without needing to take the bar.
Description: In-house lawyers work all over the place — in different states and in different countries. They move in and out of locations where their clients operate. They handle deals and even litigation in far-flung spots from their home offices. And they might not know where they’ll need to go or work next. To accommodate those changing demands, in-house counsel need flexibility. The most flexible system we can think of is to treat law licenses like drivers’ licenses. For instance, if you pass the driving test in one state in the United States, you can travel all over the country. Why? Because roads go everywhere. The same thing should apply to in-house counsel. In-house work doesn’t screech to a halt at the border line.
A lawyer — however defined — who is licensed and in good standing in her home jurisdiction may practice temporarily in other jurisdictions by simply agreeing to submit to regulation by appropriate authorities and be subject to applicable rules, without requiring local admission. This concept is often described as a “driver’s license” rule. Similarly, an equally simple and uniform rule is required to enable lawyers to relocate on a permanent basis and waive into a US jurisdiction based on their existing credentials (and not a full bar examination process).
ACC helped the U.S. take a big step towards this goal when it convinced the American Bar Association and almost every state in the U.S. to adopt a new ethics rule — usually called Rule 5.5(d) — to allow in-house counsel to register to work for their employers without taking a new bar. But many states impose unnecessary restrictions. For instance, many states require registered in-house lawyers to apply for special permission to appear in court, and prohibit them from volunteering for pro bono work.
ACC is working to expand the right to practice for in-house lawyers around the world, including in Europe, Asia and India.
Frequently Asked Questions
Q: Why shouldn’t in-house lawyers take the bar in new jurisdictions?
A: That doesn’t reflect the business world we live in. Companies often need in-house lawyers to move around between offices for short periods of time. It’s simply not practical to have them take the bar, and it’s wasteful to hire locally licensed lawyers.
Q: Do you think that special rules should apply to in-house counsel?
A: Ideally, no. If states follow ACC’s recommendations, jurisdictions will treat all lawyers the same. Those jurisdictions — in the U.S. and around the world — will allow lawyers to practice law in different places, on a temporary basis, just like they can now drive in different states on a temporary basis.
Q: Isn’t there a risk that lawyers who practice elsewhere simply don’t know what they’re doing?
A: No. ACC recommends that states incorporate the equivalent of Model Ethics Rule 1.1, which requires that all lawyers have competence in a given area of law in order to practice law in that area of law. Lawyers who practice but lack competence should be subject to sanctions. But that doesn’t require a bar exam.