In-House Counsel, Pro Bono, State Judges

House Rules: A Warning For In-House Counsel In New York

If you work in-house in New York, you better register with the state, or else you might be criminally charged.

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That headline woke some of you up, I am sure. But don’t worry — keep reading for the details.

When a judge “requests” that you attend a function, or to represent an indigent client, or to work on a statewide task force, you don’t say no. Not only is it bad form to refuse such a request, accepting the invitation can get you a seat at a table full of people smarter than you, and might just allow you to have an impact on pending judiciary rules.

I met yesterday with a statewide task force on in-house attorney registration and pro bono work. Chief Judge Lippman and Judge Victoria Graffeo of the New York Court of Appeals are spearheading the effort to have all New York in-house counsel, who are not admitted in New York, register with the courts. The State Legislature has gone further and has passed legislation making it a felony to fail to so register. In other words, failure to register can get you a charge of unlicensed practice of law (“UPL”). The following is excerpted from correspondence with Judge Graffeo…

All in-house corporate attorneys who are not admitted to practice law in New York State must register under Part 522 of the Rules of the Court of Appeals. Registration does not equate to admission, but registered in-house counsel are able to provide legal services to the corporate employer and its affiliates without engaging in the unauthorized practice of law in New York State. To be eligible to register, the attorney must be admitted to practice in any other state or territory of the United States or in the District of Columbia and be currently admitted to the bar as an active member in good standing in at least one of the 44 other jurisdictions that has reciprocal recognition with New York.

Applications for registration as in-house counsel are submitted to the Appellate Division in the jurisdiction where the attorney works or lives. Once registered, in-house counsel are subject to the disciplinary authority of the Appellate Division and must abide by the rules that govern attorneys admitted to practice of law in New York.

There is no fee to register, and at the current time, in-house counsel are not subject to New York’s continuing legal education requirements.

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It is important to note that Chapter 492 of the Laws of 2012 elevated the crime of practicing or appearing as an attorney-at-law without being admitted to practice to a class E felony. The new statutes — Judiciary Law sections 478, 485 and 486 — take effect on November 1, 2013. The Governor’s Approval memorandum states that the legislation “would make the unlicensed practice of law a class E felony when an individual is damaged in an amount greater than one thousand dollars or when his or her legal rights are materially impaired.” To avoid any violation of these provisions, all eligible corporate counsel should obtain the registration application and secure the necessary documents in order to comply with the in-house counsel registration rule, which legitimizes the corporate counsel’s legal activities on behalf of the corporate client in New York.

Earlier, I mentioned pro bono activities for in-house counsel. As a second issue that the task force is taking up, Chief Judge Lippman is having us discuss the possibility of in-house counsel engaging in a variety of voluntary pro bono legal activities. If such steps are eventually taken, only registered in-house counsel will be eligible to provide pro bono legal services.

So, your takeaways this week are 1) get yourself registered or admitted with the State, if you are required to do so, and 2) start thinking about pro bono work. After meeting with the group yesterday it is apparent that the need for pro bono assistance in New York State is overwhelming. Chief Judge Lippman believes that in-house counsel are an untapped resource, and I agree with that belief. One interesting issue that came out of the meeting was that in-house counsel are likely prepared to handle many more issues of law than the “standard” matrimonial, landlord/tenant, SSI, etc. issues. In-house counsel are likely to have expertise in IP protection, foreclosures, non-profit requirements, taxes, and on and on.

Stay tuned, we have another meeting in a few weeks, and I will be happy to fill you in on any developments.

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After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at dmowry00@gmail.com.

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