April 26, 2011

New York Court of Appeals Adopts Registration Standards for In-House Counsel

The New York Court of Appeals has recently approved registration standards for in-house counsel who are not admitted to the bar in the State of New York. The new rules are codified at 22 NYCRR Part 522, and went into effect on April 20, 2011. The new rules define in-house counsel as “an attorney who is employed full time in this State by a non-governmental corporation, partnership, association, or other legal entity, including its subsidiaries and organizational affiliates, that is not engaged in the practice of law or the rendering of legal services outside such organization.” In-house counsel may apply for New York registration as long as the attorney is licensed and in good standing in another state that “would similarly permit an attorney admitted to practice in this State to register as an in-house counsel.” This precludes the admission of attorneys solely licensed in Hawaii, Mississippi, Montana, Texas and West Virginia. See New York State Bar Association, “Joint Report - Proposed Rules for Licensing of In-house Counsel,” pg. 4, fn. 8: Nov. 2010. Under the new Rules, in-house counsel will have to pay the biennial $375 registration fee applicable to New York admitted attorneys, meet New York’s continuing legal education (CLE) requirements, and be subject to New York’s attorney disciplinary rules. The Rules also clarify restrictions on the allowed scope of practice of in-house attorneys. In-house counsel will not be permitted to provide legal services to the general public, appear before agencies or other tribunals, engage in any activity where pro hac vice admission would be required if engaged in by an attorney not licensed in New York, or hold oneself out as an attorney licensed to practice in New York, “except on the employer’s letterhead with a limiting designation.” Prior to adoption of the new Rules, New York was one of the few states without a licensing requirement for in-house counsel. Nonetheless, a general consensus had prevailed that the practice was authorized under the New York ethics rules and case law. In New York State Bar Association Ethics Opinion 835 (12/24/09), the Committee on Professional Ethics specifically found that multijurisidictional law practice by corporate counsel was not governed by a provision of the New York Rules of Professional Conduct, and thus outside the jurisdiction of the Ethics committee. The Committee did note, however, that case law suggests that lawyers not admitted to practice in New York but admitted and in good standing in another U.S. jurisdiction are not engaging in the unauthorized practice of law when performing “incidental and innocuous” legal work in New York. Ethics Opinion 835, citing El Gemayel v. Seaman, 72 N.Y.2d 701, 707 (1988); accord Spivak v. Sachs, 16 N.Y.2d 163, 168 (1965). Attorneys acting as in-house counsel before April 20, 2011 will have 90 days to register, and attorneys that become in-house counsel after April 20, 2011 will have 30 days from the commencement of employment to register under the new requirements. Failure to register and comply with the requirements will be deemed professional misconduct. For more information, please contact Matthew Kertz, Esq. at (973) 230-2087 or Celia S. Bosco, Esq. at (973) 535-7130.