Practice rules for foreign attorneys are shaping up nicely in Virginia

Guest blogger:  David Kessler is a Senior Director in the Legal Department of McAfee, Inc., a wholly-owned subsidiary of Intel Corporation, where he manages a team that oversees all of McAfee’s public sector business transactions and compliance obligations.

For in-house counsel who could one day be interested in waiving into membership in the Virginia State Bar, we have good news:  The Virginia Supreme Court appears to be responding favorably to arguments made by the WMACCA Chapter and ACC to modernize and expand the current reciprocal admission rules.

Last fall, the Virginia Supreme Court sought to overhaul its practice rules on admission of foreign attorneys without examination.  On December 1, 2012, WMACCA and ACC responded with a strong comment letter that offered guidance on how the Court could align its reciprocal admission rules with the realities of modern legal practice.

WMACCA and ACC advocated for changes that included, among other things, removing the requirement of 35 hours per week of full-time practice, shortening the minimum practice requirement to three (3) of the last five (5) years, and eliminating the requirement that attorneys admitted by motion continually certify (even after admission) that they intend to practice in Virginia.  In essence, WMACCA and ACC argued that all attorneys – whether admitted by motion or examination – should stand equal before Virginia law.

On April 15, 2013, the Virginia Supreme Court issued a revised proposed rule that includes many of the revisions that WMACCA and ACC recommended.  Just take a look at how we fared:

WMACCA/ACC’S ADVOCACY: UNDER VIRGINIA’S REVISED PROPOSED RULE:
  • Require only “active practice of the law” as a threshold qualification, instead of 35 hours of full-time practice, to allow that experienced attorneys with reduced-hour schedules be treated equally with attorneys admitted by examination
Successfully removed from revised proposed rule
  • Shorten its minimum practice requirement as a threshold qualification to three (3) of the immediately preceding five (5) years, instead of five (5) of the immediately preceding seven (7)  years
Successfully shortened to 3 of 5 years
  • Eliminate the “intent to practice” requirement in Virginia after admission to allow maximum professional flexibility and ensure equal treatment with attorneys admitted by examination
Successfully removed from revised proposed rule
  • Eliminate the requirement to hold an unrestricted license to acknowledge that many in-house counsel do not practice in their home jurisdiction, but instead represent their clients as designated corporate counsel in other jurisdictions
Remains to be addressed
  • Harmonize the rules so that the period of time that a lawyer practices under a corporate counsel designation expressly counts toward the minimum practice requirement
Remains to be addressed

WMACCA and ACC are excited to have made such significant headway for members who may want to practice in Virginia and we continue to push for greater freedom of movement.

With the release of the revised proposed rules, the Virginia Supreme Court opened another comment period through May 31, 2013 and, again, WMACCA and ACC weighed in.  In this comment letter, WMACCA and ACC seek to ensure that in-house counsel who practice under a corporate counsel designation will be treated as engaging in the “general practice of law” under an “unrestricted” license – both of which Virginia requires for foreign attorneys to be admitted without examination.

Additionally, WMACCA and ACC asked the court to clarify the jurisdiction on which reciprocity can be based when an applicant is practicing under a corporate counsel designation.  The reason is that, for some in-house counsel, the jurisdiction that has reciprocity with Virginia may be different from where the applicant has practiced for three (3) of the immediately preceding five (5) years under a corporate counsel designation.

In line with ACC Advocacy, WMACCA desires to ensure that every year that our members spend practicing is a year that benefits them, offering greater freedom to practice from any jurisdiction they choose.

We filed in Virginia on Friday, May 31st.  We’ll keep you posted on what happens next…