Nov. 15: New rules for out-of-state lawyers

In April, the California Supreme Court approved new rules to allow out-of-state attorneys to practice in California under limited circumstances. The rules affect four categories of lawyers: in-house counsel, legal services attorneys, litigation attorneys who are in California in anticipation of litigation or in connection with litigation elsewhere, and non-litigation attorneys temporarily in California.

Attorneys who fall into the last two categories will benefit from new “safe harbors” that permit them to essentially continue to do the activities they were doing previously, but without fear of prosecution or discipline. For example, they can counsel clients, take depositions, collect evidence and negotiate settlements.

Attorneys in the first two categories will be required to abide by new rules, however.

Later this month, the State Bar Board of Governors will consider proposed rules and regulations to implement new standards governing multijurisdictional practice (MJP). The rules will be sent out for a 45-day public comment period and will be adopted in time for the Nov. 15 implementation date.

Detailed information about the MJP changes is online at calbar.ca.gov. Following is a list of frequently asked questions about the new rules.

1. What are the requirements for practicing as an MJP attorney?

The requirements vary, with the exception that the attorney must be an active member in good standing of the bar of a U.S. state, jurisdiction, possession, territory or dependency.

2. Do MJP attorneys have to register with the State Bar?

Legal services attorneys and in-house counsel must register with the State Bar and file an Application for Determination of Moral Character. Litigation and non-litigation attorneys eligible under rules 966 and 967 are not required to register.

3. Will I have to pay a fee?

Yes. The fees have not been determined at this time, but it is expected that in-house counsel and legal services attorneys will pay an application fee when they register with the bar, and thereafter will pay some bar dues, not yet determined but likely to be the same fee paid by active lawyers.

4. How do I register?

Legal services and in-house attorneys must submit an application, available at the bar’s Web site.

5. Do I have to take the California bar exam?

No. You must meet all of the requirements for admission to the California bar except that you do not need to take the bar exam or the Multistate Professional Responsibility Exam.

6. If I took and failed the California bar exam, does that affect my eligibility?

If you are a legal services attorney and took and failed the bar exam within five years immediately preceding your application to register, you are not eligible for registration. If you are an in-house counsel, the restriction does not apply.

7. If I practiced as in-house counsel before the effective date of Nov. 15, will my application for registration be denied?

No, that fact alone is not a ground for denial.

8. What is a qualifying legal services provider?

Either a non-profit entity incorporated and operated exclusively in California that provides legal services without charge, or a program operated in California by a non-profit law school. See rule 964(j)(1) for details.

9. What is a qualifying institution for in-house counsel?

A corporation, partnership, association or other legal entity, including its subsidiaries and organizational affiliates. Neither a governmental entity nor an entity that provides legal services to others can be a qualifying institution for purposes of the rule. The qualifying institution must employ at least 10 employees fulltime in California or employ an active attorney in good standing in California.

10. What legal activities are permitted?

Legal services lawyers may engage in all forms of legal practice permissible for California bar members, including making court appearances, as long as they are supervised and provide the services pursuant to the rules. In-house counsel may provide legal services only to the qualifying institution that employs them. They may not appear in court or engage in any other activities for which pro hac vice admission is required, and they may not provide personal or individual representation to any customers, shareholders, etc., of their employer.

11. Do I have to comply with MCLE requirements?

Yes. Both in-house and legal services attorneys must comply with the 25-hour requirement in the first year of practice in California. After that, in-house counsel will have the same 25 hours-in-three-years requirement as other California lawyers and will be placed in one of three compliance groups.

12. How long does my registration last?

In-house counsel may re-register annually for as long as they are in California. Legal services lawyers may practice as a registered legal services attorney for no more than three years.

13. What kind of documentation must I provide in order to register?

You must provide a certificate of good standing from the jurisdiction in which you are licensed. Legal services attorneys must provide a declaration signed by the supervising attorney and in-house counsel must provide a declaration signed by the applicant’s employer.

14. What rules must litigators and transactional and other non-litigating attorneys comply with?

If they are making court appearances in California, they must comply with pro hac vice requirements (rule 983). If their matter goes to arbitration, they have to comply with California’s out of state attorney arbitration rule (rule 983.4). All rules are online.