These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 41 - Non-Virginia Lawyers
LEO NumTopicsSummaryDate
1743

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41-Non-Virginia Lawyers

[WITHDRAWN 9/16] Virginia lawyers may not form a partnership or LLC with foreign legal consultants (not admitted in any state) if any of the activities would constitute the practice of law. [The new foreign legal consultant rule (Rule1A:7) permits foreign legal consultants to be partners of Virginia firms in certain situations.]4/13/2000
0828

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41-Non-Virginia Lawyers

55-Firm Names and Letterhead

A foreign citizen who is not licensed to practice law in the United States may not indicate on letterhead that the lawyer is a legal adviser to various countries, since it would tend to be misleading. [The new foreign legal consultant rule (Rule 1A:7) may permit this activity.]9/23/1986
1130

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38-Fee Splitting

41-Non-Virginia Lawyers

A foreign lawyer may refer cases to a Virginia lawyer and retain one-half of the fee as long as the lawyers comply with the fee-splitting rules (including client consent and assumption by both lawyers of responsibility to the client). [This LEO was overruled by Rule 1.5(e), which does not require that a lawyer sharing in fees also share responsibility, thus allowing "referral fees" if the client consents after full disclosure.] 10/18/1988
1154

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21-Reporting Another Lawyer's Unethical Conduct

41-Non-Virginia Lawyers

A foreign state bar would have jurisdiction over a foreign lawyer's actions in that state. [Rule 8.5 determines which state's disciplinary rule would apply to violations.]11/2/1988
0197

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41-Non-Virginia Lawyers

A law firm may use a non-Virginia lawyer to search titles as long as the lawyer does not render services to firm clients. 10/1/1968
1143

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41-Non-Virginia Lawyers

55-Firm Names and Letterhead

A law firm's letterhead should indicate the jurisdictional limitations of any of the listed lawyers' practices. A non-Virginia lawyer may negotiate with a Virginia lawyer without engaging in the unauthorized practice of law. 10/26/1988
ABA-464

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38-Fee Splitting

41-Non-Virginia Lawyers

A lawyer may ethically share fees with another lawyer who is authorized to participate in the matter and share fees, even if that other lawyer practices in a law firm (in jurisdictions like the District of Columbia and the United Kingdom) owned in part by nonlawyers. Model Rule 5.4(a) generally prohibits fee-sharing with a nonlawyer, although it contains an exception "for firm compensation and retirement plans [which] depends on whether the profits being shared are 'tied to particular clients or particular matters.'" (citation omitted); "[A] division of a legal fee by a lawyer or law firm in a Model Rules jurisdiction with a lawyer or law firm in another jurisdiction that permits the sharing of legal fees with nonlawyers does not violate Model Rule 5.4(a) simply because a nonlawyer could ultimately receive some portion of the fee under the applicable law of the other jurisdiction."; Among other things, "there is no reason to believe that the nonlawyer in the [other jurisdiction] might actually influence the independent professional judgment of the lawyer in the Model Rules jurisdiction, who practices in a different firm, in a different jurisdiction."8/19/2013
1342

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11-"Of Counsel" Relationship

41-Non-Virginia Lawyers

A lawyer may include a non-Virginia lawyer as "of counsel" on the firm's letterhead, but the characterization must be accurate. Providing business advice and financial assistance to the firm does not create an "of counsel" relationship. 4/20/1990
1434

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35-Threatening Criminal and Disciplinary Action

41-Non-Virginia Lawyers

A lawyer may not threaten to bring criminal charges to gain a civil advantage. A lawyer not a member of the Virginia Bar is not subject to Virginia's disciplinary rules, but the lawyer's conduct "may be of interest to the disciplinary body of the jurisdiction in which he is licensed to practice." [Under Rule 8.5, a non Virginia lawyer is subject to Virginia discipline if providing services in Virginia.]10/21/1991
0440

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13-Marketing - Miscellaneous

41-Non-Virginia Lawyers

A multi-jurisdictional law firm may include Virginia lawyers in the firm's retainer agreements without listing the non-Virginia lawyers. 11/18/1981
0858

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41-Non-Virginia Lawyers

55-Firm Names and Letterhead

A multi-state law firm must indicate on its letterhead which lawyers are members of the Virginia State Bar and which are not, and may include a footnote indicating that the non-Virginia lawyers are admitted in other states. 11/10/1986
0393

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41-Non-Virginia Lawyers

45-Law Firms - Miscellaneous

A non-Virginia lawyer may own and operate a legal clinic in Virginia as long as the corporation is domesticated and all legal services are performed by Virginia lawyers. 12/15/1980
0388

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41-Non-Virginia Lawyers

45-Law Firms - Miscellaneous

A non-Virginia lawyer who is a registered patent lawyer may practice trademark law in Virginia and create a partnership with Virginia lawyers as long as the partnership only practices before the Patent & Trademark Office. [USPTO ethics rules preempt any Virginia ethics rules, and would allow such a partnership; Va. LEO 1843 (4/16/08)]8/7/1980
1636

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8-Bills and Fees

39-Miscellaneous

40-Trust Accounts

41-Non-Virginia Lawyers

A Virginia firm bills its clients for the firm's costs, as well as costs incurred by foreign law firms. The Virginia firm does not place the client reimbursement checks in its trust account, and sometimes reimburses the foreign law firms many months later.If the Virginia firm has already paid the foreign law firm for its costs, then the Virginia firm may place the client's reimbursement checks in its operating account. However, the reimbursement checks must be placed in the trust account if the foreign law firms have not yet been reimbursed. Likewise, the Virginia firm may not use the clients' reimbursement checks for other purposes, but instead has an ethical duty to immediately pay the foreign law firms. 4/19/1995
0325

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41-Non-Virginia Lawyers

55-Firm Names and Letterhead

A Virginia law firm and an out-of-state law firm may not use the same name and letterhead if they are not a partnership or share professional liability. 6/6/1979
1843

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28-Law Firm Staff

38-Fee Splitting

41-Non-Virginia Lawyers

Federal regulations governing "the specific practice of patent law before the USPTO" preempt the Virginia ethics rules, and thus allow a Virginia licensed lawyer on associate status to form a partnership with non-lawyer patent practitioners (as defined in the CFR) and share legal fees with non-lawyer registered patent agents.4/16/2008
1026

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13-Marketing - Miscellaneous

41-Non-Virginia Lawyers

55-Firm Names and Letterhead

If a law firm lists different states where its lawyers are licensed, the names of the lawyers should be included. A statement indicating that the law firm "serves" three jurisdictions might give the erroneous impression that each lawyer is licensed in those jurisdictions. 2/1/1988
1093

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

41-Non-Virginia Lawyers

Two lawyers represent a felon. After the trial, the client advises one of the lawyers that the other lawyer (who is a member of an out-of-state bar) instructed the client to commit perjury. The lawyer must disclose this information to the tribunal and (if it raises a substantial question of the other lawyer's fitness to practice law) to the Virginia Bar and the bar of the state in which the other lawyer practices. [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]8/1/1988
ABA-423

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41-Non-Virginia Lawyers

45-Law Firms - Miscellaneous

U.S. law firms may include partners who are foreign lawyers, as long as the arrangement complies with U.S. and foreign law, and the foreigners are "members of a recognized legal profession in the foreign jurisdiction" (examples include lawyers in European Union countries, Great Britain, Japan, and Sweden); U.S. lawyers must avoid assisting in the unauthorized practice of law by foreign lawyers in the U.S., and should remember that many countries recognize only a narrow attorney-client privilege (for example, most civil law countries do not protect communications with in-house corporate counsel).9/22/2001
1856

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41-Non-Virginia Lawyers

45-Law Firms - Miscellaneous

Under Virginia Rule 5.5, non Virginia lawyers "may not practice Virginia law on a 'systematic and continuous' basis," unless they (1) limit their practice to the "law of the jurisdiction/s where they are licensed"; (2) practice "exclusively federal law" under the federal supremacy clause (such as "lawyers with practices limited to immigration or military law or who practice before the Internal Revenue Service, the United States Tax Court, or the United States Patent and Trademark Office," although lawyers such as bankruptcy, patent or federal procurement lawyers must abide by courts' possible limitation of practice before the courts to members of the Virginia Bar, and may provide advice "such as the debtor's homestead exemption and status or priority of claims or liens" or "the assignment of the patent to a third party or the organization of a corporate entity to market or franchise the invention" only under the conditions mentioned immediately below; (3) "provide advice about Virginia law or matters peripheral to federal law (described immediately above) only if they do so on a "temporary and occasional" basis and (as stated in UPL Opinion 195) "under the direct supervision of a Virginia licensed lawyer before any of the [non Virginia] lawyer's work product is delivered to the client" or if they "associate with an active member of the Virginia State Bar." Rule 5.5 overrules an earlier UPL Opinion about which law applies to a non Virginia lawyer's practice of another state's law while physically in Virginia; thus, "New York law should govern whether a foreign lawyer not authorized to practice in New York may advise New York clients on matters involving New York law. The [non Virginia] lawyer's physical presence in Virginia may not be a sufficient basis to apply Virginia's rules over New York's rules governing foreign lawyer practice." Contract lawyers hired to "work on a matter involving Virginia law" must either "be licensed in Virginia or work in association with a Virginia licensed lawyer in the firm on a temporary basis" although such a lawyer's practice "could be regarded as 'continuous and systematic'" if the non Virginia contract lawyer is hired "to work on several and various Virginia matters/cases over a period of time." Such contract lawyers need not be licensed in Virginia if the lawyer is "hired to work only on matters involving federal law or the law of the jurisdiction in which the [non Virginia] contract lawyer is admitted." [Approved by the Supreme Court of Virginia 11/2/16].9/11/2011

Copyright 2000, Thomas E. Spahn