What is a "corporate counsel?"
Under Rule 1A:5, a "corporate counsel" is defined as any person employed in Virginia as a lawyer exclusively for a for-profit or a non-profit corporation, association, or other business entity, including its subsidiaries and affiliates, that is not a government entity, and the business of which consists solely of lawful activities other than the practice of law or the provisions of legal services (employer), for the primary purpose of providing legal services to such employer, including one who holds himself or herself out as "in-house counsel," "corporate counsel," "general counsel," or other similar title indicating that he or she is serving as legal counsel to such employer.
What is required to obtain a Corporate Counsel Certificate under Part I of Rule 1A:5?
In order to serve as a "corporate counsel" in Virginia, one must: (i) be a regularly admitted active lawyer of the Virginia State Bar; or (ii) be issued a Corporate Counsel Certificate as provided in Part I of Rule 1A:5 and thereby become an active lawyer of the Virginia State Bar with his or her practice limited as provided therein; or (iii) register with the Virginia State Bar as provided in Part II of Rule 1A:5.
What is required to obtain a Corporate Counsel Certificate under Part I of Rule 1A:5?
To obtain a Corporate Counsel Certificate one must be a foreign attorney admitted to practice, active and in good standing, in another state or territory of the United States. Each applicant for a Corporate Counsel Certificate must:
(1) File with the Virginia Board of Bar Examiners (VBBE) an application, under oath, upon a form furnished by the board.
(2) Provide evidence that he or she:
- holds a Juris Doctor degree from a law school accredited by the American Bar Association,
- has been admitted by examination,
- is licensed to practice law before the court of last resort of any state or territory of the United States or District of Columbia,
- is currently an active lawyer in good standing in at least one state or territory of the United States,
- is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in another jurisdiction,
- possesses good moral character, and
- has read and is familiar with the Virginia Rules of Professional Conduct.
(3) File an affidavit from an officer of the applicant’s Employer upon a form provided by the VBBE.
(4) Pay any fees set by the board.
What does "active and in good standing" mean?
The terms "active” and “in good standing" mean that the applicant is authorized to practice law in another state or territory where they are admitted or have a law license. Lawyers who are licensed in another state or territory but whose license has been suspended or revoked, or whose license classification does not permit them to practice law, or who have permitted their license to lapse into an inactive status are not "active and in good standing" and therefore cannot apply under Rule 1A:5.
May an applicant serve as in-house or corporate counsel for a Virginia employer while his or her application under Rule 1A:5 is pending?
Yes. During the period in which an application for a Corporate Counsel Certificate is pending with the Virginia Board of Bar Examiners until the applicant is notified that either (i) his or her application is rejected; or (ii) he or she is eligible to practice pursuant to Part I of the rule, the applicant may be employed in Virginia as legal counsel on a provisional basis, provided that his or her employer has furnished the affidavit required by the rule.
Upon a finding by the Virginia Board of Bar Examiners that the applicant has complied with the requirements, the VBBE shall notify the applicant that he or she is eligible to be issued a Corporate Counsel Certificate. After the applicant has taken and subscribed to the oath required of attorneys at law, the applicant shall be issued a Corporate Counsel Certificate, which shall permit the applicant to practice law in Virginia only as provided in Part I(e) of the rule.
What other requirements are necessary to maintain the Corporate Counsel Certificate under Part I of the rule?
A lawyer issued a Corporate Counsel Certificate under Part I of the rule will be deemed an active lawyer of the Virginia State Bar and therefore must meet all the requirements for active status, including payment of the annual active lawyer dues, payment of any fees charged of active lawyers, completion of the mandatory Professionalism Course, and completion of the annual Mandatory Continuing Legal Education (MCLE) requirement of 12 hours out of which 2 hours must be in ethics/professionalism and 4 hours must be live-interactive credit. In addition, the corporate counsel must maintain an address of record with the Virginia State Bar which shall be the address of the employer.
What is a corporate counsel authorized to do under Part I of the rule?
Under Part I of the rule a corporate counsel may provide legal services to his or her employer in Virginia. Legal services are: giving legal advice to the employer; preparing legal instruments on behalf of the employer and representing the employer in court or before an administrative agency or tribunal. A corporate counsel licensed under Part I of the rule shall be limited to practice exclusively for the employer and cannot provide legal services to anyone other than the employer. However, those admitted under Part I can and is encouraged to provide voluntary pro bono publico services in accordance with Rule 6.1 of the Virginia Rules of Professional Conduct.
Who is an "employer" under Rule 1A:5?
An "employer" means any entity in Virginia that is a for-profit or a non-profit corporation, association, or other business entity, including its subsidiaries and affiliates, that is not a government entity, and the business of which consists solely of lawful activities other than the practice of law or the provisions of legal services. Thus, a corporate counsel is authorized to provide legal services to a corporate subsidiary or affiliate of the entity which hired him or her.
What is the "employer" required to do under Rule 1A:5?
The "employer" must file an affidavit (available from the VBBE) from an officer of the employer attesting to the fact that the prospective corporate counsel/applicant is employed as legal counsel to provide legal services exclusively to the employer, including its subsidiaries and affiliates; that the nature of the applicant's employment conforms to the requirements of Part I or Part II of the rule; and that the employer shall notify the Virginia State Bar immediately upon the termination of the applicant's employment.
What if the employer terminates the corporate counsel's employment?
Both the employer and the corporate counsel must notify the Virginia State Bar of any change in the employment from that described in the affidavit filed by the employer. If the employer terminates the corporate counsel, the Virginia State Bar will automatically suspend the certificate or registration issued under Parts I or II.
What other circumstances may cause the suspension of the corporate counsel's authority to practice in Virginia?
In addition to the employer's termination of the corporate counsel's employment, the Virginia State Bar may also suspend the corporate counsel's authority to practice in Virginia if (a) the lawyer fails to comply with any provision of Part I or Part II of the rule, or (b) when the lawyer is suspended or disbarred for disciplinary reasons in any state, territory of the United States or the District of Columbia or by any federal court or agency before which the lawyer has been admitted to practice. Administrative suspensions may also occur as a result of the lawyer not meeting annual renewal requirements or not completing MCLE requirements, if applicable.
If a corporate counsel has been disciplined in another state where he or she is licensed, must he or she self-report such a matter to the Virginia State Bar?
Yes. Rule 1A:5 explicitly requires a corporate counsel to report any change in bar status in any state, territory of the United States or the District of Columbia in which the lawyer has been admitted to the practice of law, or the imposition of any disciplinary sanction in a state, territory of the United States or the District of Columbia or by any federal court or agency before which the lawyer has been admitted to practice. If a lawyer fails to self-report that he or she has been disciplined in another jurisdiction, this is not only a violation of Rule 1A:5, but also a violation of Rule 8.3 (e)(1) of the Virginia Rules of Professional Conduct.
If a corporate counsel engages in professional misconduct, which jurisdiction’s rules apply?
Any lawyer licensed under Rule 1A:5 stipulates that the Virginia Rules of Professional Conduct shall apply in determining whether he or she has engaged in misconduct while serving as corporate counsel for a Virginia employer. In addition, the rules governing the procedure for disciplining, suspending and disbarring attorneys (Va. S. Ct. R., pt. 6, § IV, ¶ 13) shall apply to any disciplinary proceedings commenced by the Virginia State Bar against a corporate counsel. Other states where a corporate counsel is admitted to practice may also initiate reciprocal or non-reciprocal disciplinary proceedings pursuant to their rules.
May a lawyer seek reinstatement of his or her authority to practice under Rule 1A:5?
Yes. Any lawyer whose authority to practice is suspended due to termination by the employer shall be reinstated upon evidence satisfactory to the Virginia State Bar that the lawyer is in full compliance with the requirements of the rule, which shall include an affidavit furnished by the lawyer's new employer. Any lawyer whose authority to practice is suspended for non-compliance with any of the specific requirements of Rule 1A:5 may be reinstated by compliance with applicable provisions of Part 6, Section IV, Paragraph 19 of the Rules of the Supreme Court of Virginia. Any lawyer whose authority to practice is suspended or terminated through the disciplinary system shall petition for reinstatement pursuant to Part 6, Section IV, Paragraph 13-25. of the Rules of the Supreme Court of Virginia.
May a lawyer practicing under Part I of Rule 1A:5 seek admission as a regular active lawyer of the Virginia State Bar without taking the Bar exam?
Yes, assuming all other relevant admission requirements are met for admission on motion without examination. The period of time a lawyer practices law as permitted by a Corporate Counsel Certificate issued pursuant to Part I shall be considered in determining whether the lawyer has fulfilled the requirements for admission to practice law in Virginia without examination pursuant to Rule 1A:1 and any guidelines approved by the Supreme Court of Virginia for review of applications for admission without examination.
What are the material differences between a corporate counsel licensed under Part I and Part II of Rule 1A:5.
A lawyer who is licensed by the Virginia Board of Bar Examiners under Part I is an active lawyer of the Virginia State Bar whose practice is limited to the representation of only one client, the employer. The rendition of legal services under Part I is considered the "practice of law." A lawyer licensed under Part I must meet all the conditions required of any other active lawyer of the Virginia State Bar. Unlike their Part II counterparts, lawyers licensed under Part I may represent their employer in the state courts in Virginia before which they have qualified without associating local Virginia counsel and moving for admission pro hac vice as required of foreign attorneys seeking to appear in a Virginia court. In addition, unlike their Part II counterparts, lawyers practicing under Part I receive credit for the years they practice in Virginia as corporate counsel when applying for regular status to the Virginia State Bar on motion (without examination).
Part II lawyers serving as corporate counsel may not represent their employers in court without associating a lawyer of the Virginia State Bar and moving for admission pro hac vice. Also, the time spent practicing in Virginia under Part II shall not be considered the "practice of law in Virginia" and therefore shall not be considered as meeting the threshold practice requirements for admission to the Virginia State Bar on motion. Part II lawyers are not required to attend any MCLE seminars nor attend the Professionalism Course. Part II lawyers cannot do pro bono publico work. Like Part I lawyers, however, Part II lawyers are subject to the Virginia Rules of Professional Conduct and the disciplinary process under Paragraph 13.
Must a regular active lawyer of the Virginia State Bar apply under Rule 1A:5 to serve as in-house or corporate counsel for a Virginia employer?
No. In fact, the rule explicitly precludes regularly admitted lawyers of the Virginia State Bar from applying. An active lawyer of the Virginia State Bar may serve as corporate counsel without applying under Rule 1A:5.
May a lay employee, as permitted under existing law, give advice to and prepare legal documents for his or her regular employer?
Yes, under current law, an employee who gives legal advice to and prepares legal instruments for his or her regular employer is considered an “exception” to the practice of law in Virginia. In addition, a lay employee may continue to appear on behalf of his or her employer in General District Court as authorized by law. (Part 6 §I (3)(E) and (G) Rules of the Supreme Court of Virginia, Unauthorized Practice of Law Rules). Rule 1A:5 simply requires that any person who is hired primarily for the purpose of serving as legal counsel to a Virginia employer must be a lawyer admitted to the Virginia State Bar or be authorized to practice under Rule 1A:5 if they are admitted to practice in another state but not in Virginia. A lay employee who does not hold himself out as corporate counsel and who is employed primarily for purposes other than providing legal services may occasionally give advice to or prepare legal documents for his or her regular employer.