Current through Register Vol. 39, No. 6, September 16, 2024
(a) A lawyer shall
not practice law in a jurisdiction where doing so violates the regulation of
the legal profession in that jurisdiction.
(b) A lawyer who is not admitted to practice
in this jurisdiction shall not:
(1) except as
authorized by these rules or other law, establish an office or other systematic
and continuous presence in this jurisdiction for the practice of law;
or
(2) hold out to the public or
otherwise represent that the lawyer is admitted to practice law in this
jurisdiction.
(c) A
lawyer admitted to practice in another United States jurisdiction, and not
disbarred or suspended from practice in any jurisdiction, does not engage in
the unauthorized practice of law in this jurisdiction if the lawyer's conduct
is in accordance with these rules and:
(1) the
lawyer is authorized by law or order to appear before a tribunal or
administrative agency in this jurisdiction or is preparing for a potential
proceeding or hearing in which the lawyer reasonably expects to be so
authorized;
(2) the lawyer acts
with respect to a matter that arises out of or is otherwise reasonably related
to the lawyer's representation of a client in a jurisdiction in which the
lawyer is admitted to practice and the lawyer's services are not services for
which pro hac vice admission is required;
(3) the lawyer acts with respect to a matter
that is in or is reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction, if the lawyer's services arise out of or are reasonably
related to the lawyer's representation of a client in a jurisdiction in which
the lawyer is admitted to practice and are not services for which pro hac vice
admission is required; or
(4) the
lawyer is associated in the matter with a lawyer admitted to practice in this
jurisdiction who actively participates in the representation and the lawyer is
admitted pro hac vice or the lawyer's services are not services for which pro
hac vice admission is required.
(d) A lawyer admitted to practice in another
United States jurisdiction or in a foreign jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, or the equivalent thereof, does
not engage in the unauthorized practice of law in this jurisdiction and may
establish an office or other systematic and continuous presence in this
jurisdiction for the practice of law if the lawyer's conduct is in accordance
with these rules and:
(1) the lawyer provides
legal services to the lawyer's employer or its organizational affiliates; the
services are not services for which pro hac vice admission is required; and,
when the services are performed by a foreign lawyer and require advice on the
law of this or another US jurisdiction or of the United States, such advice is
based upon the advice of a lawyer who is duly licensed and authorized by the
jurisdiction to provide such advice; or
(2) the lawyer is providing services limited
to federal law, international law, the law of a foreign jurisdiction or the law
of the jurisdiction in which the lawyer is admitted to practice, or the lawyer
is providing services that the lawyer is authorized by federal or other law or
rule to provide in this jurisdiction.
(e) A lawyer admitted to practice in another
United States jurisdiction, and not disbarred or suspended from practice in any
jurisdiction, does not engage in the unauthorized practice of law in this
jurisdiction and may establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law if the lawyer's conduct
is in accordance with these rules, the lawyer is the subject of a pending
application for admission to the North Carolina State Bar by comity, having
never previously been denied admission to the North Carolina State Bar for any
reason, and the lawyer satisfies the following conditions:
(1) is licensed to practice law in a state
with which North Carolina has comity in regard to admission to practice
law;
(2) is a member in good
standing in every jurisdiction in which the lawyer is licensed to practice
law;
(3) has satisfied the
educational and experiential requirements prerequisite to comity admission to
the North Carolina State Bar;
(4)
is domiciled in North Carolina;
(5)
has established a professional relationship with a North Carolina law firm and
is actively supervised by at least one licensed North Carolina attorney
affiliated with that law firm; and
(6) gives written notice to the secretary of
the North Carolina State Bar that the lawyer intends to begin the practice of
law pursuant to this provision, provides the secretary with a copy of the
lawyer's application for admission to the State Bar, and agrees that the lawyer
is subject to these rules and the disciplinary jurisdiction of the North
Carolina State Bar. A lawyer acting pursuant to this provision may not provide
services for which pro hac vice admission is required, and shall be ineligible
to practice law in this jurisdiction immediately upon being advised that the
lawyer's application for comity admission has been denied.
(f) A lawyer shall not assist another person
in the unauthorized practice of law.
(g) A lawyer or law firm shall not employ a
disbarred or suspended lawyer as a law clerk or legal assistant if that
individual was associated with such lawyer or law firm at any time on or after
the date of the acts which resulted in disbarment or suspension through and
including the effective date of disbarment or suspension.
(h) A lawyer or law firm employing a
disbarred or suspended lawyer as a law clerk or legal assistant shall not
represent any client represented by the disbarred or suspended lawyer or by any
lawyer with whom the disbarred or suspended lawyer practiced during the period
on or after the date of the acts which resulted in disbarment or suspension
through and including the effective date of disbarment or suspension.
(i) For the purposes of Paragraph (d), the
foreign lawyer must be a member in good standing of a recognized legal
profession in a foreign jurisdiction, the members of which are admitted to
practice as lawyers or counselors at law or the equivalent, and are subject to
effective regulation and discipline by a duly constituted professional body or
a public authority.
Comment
[1] A lawyer
may practice law only in a jurisdiction in which the lawyer is authorized to
practice. The practice of law in violation of lawyer-licensing standards of
another jurisdiction constitutes a violation of these rules. This rule does not
restrict the ability of lawyers authorized by federal statute or other federal
law to represent the interests of the United States or other persons in any
jurisdiction.
[2] There are
occasions in which lawyers admitted to practice in another United States
jurisdiction, but not in North Carolina, and not disbarred or suspended from
practice in any jurisdiction, may provide legal services on a temporary basis
in North Carolina under circumstances that do not create an unreasonable risk
to the interests of their clients, the courts, or the public. Paragraphs (c),
(d), and (e) identify seven situations in which the lawyer may engage in such
conduct without fear of violating this rule. All such conduct is subject to the
duty of competent representation. See Rule 1.1. Rule 5.5 does not address the
question of whether other conduct constitutes the unauthorized practice of law.
The fact that conduct is not included or described in this rule is not intended
to imply that such conduct is the unauthorized practice of law. With the
exception of Paragraphs (d) and (e), this rule does not authorize a US or
foreign lawyer to establish an office or other systematic and continuous
presence in North Carolina without being admitted to practice here. Presence
may be systematic and continuous even if the lawyer is not physically present
in this jurisdiction. A lawyer not admitted to practice in North Carolina must
not hold out to the public or otherwise represent that the lawyer is admitted
to practice law in North Carolina. See also Rules 7.1(a) and 7.5(b). However, a
lawyer admitted to practice in another jurisdiction who is a principal,
shareholder, or employee of an interstate or international law firm that is
registered with the North Carolina State Bar pursuant to 27 N.C.A.C. 1E,
Section .0200, may practice, subject to the limitations of this rule, in the
North Carolina offices of such law firm.
[3] Paragraphs (c), (d), and (e) apply to
lawyers who are admitted to practice law in any United States jurisdiction,
which includes the District of Columbia and any state, territory, or
commonwealth of the United States and, where noted, any foreign jurisdiction.
The word "admitted" in Paragraphs (c), (d)(2), and (e) contemplates that the
lawyer is authorized to practice in the jurisdiction in which the lawyer is
admitted and excludes a lawyer who while technically admitted is not authorized
to practice because, for example, the lawyer is on inactive status.
[4] Paragraphs (c), (d), and (e) do not
authorize communications advertising legal services in North Carolina by
lawyers who are admitted to practice in other jurisdictions. Nothing in these
paragraphs authorizes a lawyer not licensed in this jurisdiction to solicit
clients in North Carolina. Whether and how lawyers may communicate the
availability of their services in this jurisdiction are governed by Rules
7.1-7.5.
[5] Lawyers not admitted
to practice generally in North Carolina may be authorized by law or order of a
tribunal or an administrative agency to appear before a the tribunal or agency.
Such authority may be granted pursuant to formal rules or law governing
admission pro hac vice or pursuant to informal practice of the tribunal or
agency. Under Paragraph (c)(1), a lawyer does not violate this rule when the
lawyer appears before such a tribunal or agency. Nor does a lawyer violate this
rule when the lawyer engages in conduct in anticipation of a proceeding or
hearing, such as factual investigations and discovery conducted in connection
with a litigation or administrative proceeding, in which an out-of-state lawyer
has been admitted or in which the lawyer reasonably expects to be
admitted.
[6] Paragraph (c)(2)
recognizes that the complexity of many matters requires that a lawyer whose
representation of a client consists primarily of conduct in a jurisdiction in
which the lawyer is admitted to practice, also be permitted to act on the
client's behalf in other jurisdictions in matters arising out of or otherwise
reasonably related to the lawyer's representation of the client. This conduct
may involve negotiations with private parties, as well as negotiations with
government officers or employees, and participation in alternative
dispute-resolution procedures. This provision also applies when a lawyer is
conducting witness interviews or other activities in this jurisdiction in
preparation for a litigation or other proceeding that will occur in another
jurisdiction where the lawyer is either admitted generally or expects to be
admitted pro hac vice.
[7]
Paragraph (c)(3) permits a lawyer admitted to practice law in another
jurisdiction to perform services on a temporary basis in North Carolina if
those services are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution proceeding in
this or another jurisdiction, and if the services arise out of or are
reasonably related to the lawyer's practice in a jurisdiction in which the
lawyer is admitted to practice. The lawyer, however, must obtain admission pro
hac vice in the case of a court-annexed arbitration or mediation or otherwise
if court rules or law so require.
[8] Paragraph (c)(4) recognizes that
association with a lawyer licensed to practice in North Carolina is likely to
protect the interests of both clients and the public. The lawyer admitted to
practice in North Carolina, however, may not serve merely as a conduit for an
out-of-state lawyer but must actively participate in and share actual
responsibility for the representation of the client. If the admitted lawyer's
involvement is merely pro forma, then both lawyers are subject to discipline
under this rule.
[9] Paragraphs (d)
and (e) identify three circumstances in which a lawyer who is admitted to
practice in another jurisdiction, or a foreign jurisdiction, and is not
disbarred or suspended from practice in any jurisdiction or the equivalent
thereof, may establish an office or other systematic and continuous presence in
North Carolina for the practice of law. Except as provided in these paragraphs,
a lawyer who is admitted to practice law in another jurisdiction and who
desires to establish an office or other systematic or continuous presence in
North Carolina must be admitted to practice law generally in North Carolina.
[10] Paragraph (d)(1) applies to a
lawyer who is employed by a client to provide legal services to the client or
its organizational affiliates, i.e., entities that control, are controlled by,
or are under common control with the employer. This paragraph does not
authorize the provision of personal legal services to the employer's officers
or employees. The paragraph applies to in-house corporate lawyers, government
lawyers, and others who are employed to render legal services to the employer.
The lawyer's ability to represent the employer outside the jurisdiction in
which the lawyer is licensed generally serves the interests of the employer and
does not create an unreasonable risk to the client and others because the
employer is well situated to assess the lawyer's qualifications and the quality
of the lawyer's work.
[11]
Paragraph (d)(2) recognizes that a lawyer may provide legal services in a
jurisdiction in which the lawyer is not licensed when authorized to do so by
federal or other law, which includes statute, court rule, executive regulation,
or judicial precedent.
[12]
Paragraph (e) permits a lawyer who is awaiting admission by comity to practice
on a provisional and limited basis if certain requirements are met. As used in
this paragraph, the term "professional relationship" refers to an employment or
partnership arrangement.
[13] The
definition of the practice of law is established by N.C.G.S. §
84-2.1. Limiting the practice of
law to members of the bar protects the public against rendition of legal
services by unqualified persons. Paragraph (d) does not prohibit a lawyer from
employing the services of paraprofessionals and delegating functions to them,
so long as the lawyer supervises the delegated work and retains responsibility
for their work. See Rule 5.3.
[14]
Lawyers may also provide professional advice and instruction to nonlawyers
whose employment requires knowledge of law; for example, claims adjusters,
employees of financial or commercial institutions, social workers, accountants
and persons employed in government agencies. In addition, a lawyer may counsel
nonlawyers who wish to proceed pro se. However, a lawyer may not assist a
person in practicing law in violation of the rules governing professional
conduct in that person's jurisdiction.
[15] Paragraphs (g) and (h) clarify the
limitations on employment of a disbarred or suspended lawyer. In the absence of
statutory prohibitions or specific conditions placed on a disbarred or
suspended lawyer in the order revoking or suspending the license, such
individual may be hired to perform the services of a law clerk or legal
assistant by a law firm with which he or she was not affiliated at the time of
or after the acts resulting in discipline. Such employment is, however, subject
to certain restrictions. A licensed lawyer in the firm must take full
responsibility for, and employ independent judgment in, adopting any research,
investigative results, briefs, pleadings, or other documents or instruments
drafted by such individual. The individual may not directly advise clients or
communicate in person or in writing in such a way as to imply that he or she is
acting as a lawyer or in any way in which he or she seems to assume
responsibility for a client's legal matters. The disbarred or suspended lawyer
should have no communications or dealings with, or on behalf of, clients
represented by such disbarred or suspended lawyer or by any individual or group
of individuals with whom he or she practiced during the period on or after the
date of the acts which resulted in discipline through and including the
effective date of the discipline. Further, the employing lawyer or law firm
should perform no services for clients represented by the disbarred or
suspended lawyer during such period. Care should be taken to ensure that
clients fully understand that the disbarred or suspended lawyer is not acting
as a lawyer, but merely as a law clerk or lay employee. Under some
circumstances, as where the individual may be known to clients or in the
community, it may be necessary to make an affirmative statement or disclosure
concerning the disbarred or suspended lawyer's status with the law firm.
Additionally, a disbarred or suspended lawyer should be paid on some fixed
basis, such as a straight salary or hourly rate, rather than on the basis of
fees generated or received in connection with particular matters on which he or
she works. Under these circumstances, a law firm employing a disbarred or
suspended lawyer would not be acting unethically and would not be assisting a
nonlawyer in the unauthorized practice of law.
[16] A lawyer or law firm should not employ a
disbarred or suspended lawyer who was associated with such lawyer or firm at
any time on or after the date of the acts which resulted in the disbarment or
suspension through and including the time of the disbarment or suspension. Such
employment would show disrespect for the court or body which disbarred or
suspended the lawyer. Such employment would also be likely to be prejudicial to
the administration of justice and would create an appearance of impropriety. It
would also be practically impossible for the disciplined lawyer to confine
himself or herself to activities not involving the actual practice of law if he
or she were employed in his or her former office setting and obliged to deal
with the same staff and clientele.
Authority
G.S.
84-23;
Eff. July 24,
1997;
Amendments Approved by the Supreme Court: September 22, 2016;
October 2, 2014; November 16, 2006; March 1, 2003.
Ethics Opinion
Notes
RPC 9. Opinion states that house counsel for a
mortgage bank may not represent other lenders and borrowers while serving as
house counsel.
RPC 40. Opinion rules that for the
purposes of a real estate transaction, an attorney may, with proper notice to
the borrower, represent only the lender, and that the lender may prepare the
closing documents.
RPC 114. Opinion rules that
attorneys may give legal advice and drafting assistance to persons wishing to
proceed pro se without appearing as counsel of record.
RPC
139. Opinion rules that a lawyer may not sign an adoption petition
prepared by an adoption agency as an accommodation to that agency without
undertaking professional responsibility for the adoption
proceeding.
RPC 151. Opinion discusses when an
attorney who is a full-time employee of an insurance company may represent the
insurance company, the insured, or others respecting various matters of
interest to the insurance company.
RPC 216. Opinion
rules that a lawyer may use the services of a nonlawyer independent contractor
to search a title provided the nonlawyer is properly supervised by the
lawyer.
98 Formal Ethics Opinion 7. Opinion rules that
a law firm may employ a disbarred lawyer as a paralegal provided the firm
accepts no new clients who were clients of the disbarred lawyer's former firm
during the period of misconduct; however, a disbarred lawyer may not work as a
paralegal at a firm where he was employed as a lawyer during the period of
misconduct.
98 Formal Ethics Opinion 8. Opinion rules
that a lawyer may not participate in a closing or sign a preliminary title
opinion if, after reasonable inquiry, the lawyer believes that the title
abstract or opinion was prepared by a non-lawyer without supervision by a
licensed North Carolina lawyer.
99 Formal Ethics Opinion
6. Opinion examines the ownership of a title insurance agency by lawyers
in North and South Carolina as well as the supervision of an independent
paralegal.
2000 Formal Ethics Opinion 9. Opinion
explores the situations in which a lawyer who is also a CPA may provide legal
services and accounting services from the same office.
2000
Formal Ethics Opinion 10. Opinion rules that a lawyer may have a
non-lawyer employee deliver a message to a court holding calendar call, if the
lawyer is unable to attend due to a scheduling conflict with another court or
other legitimate reason.
2002 Formal Ethics Opinion 9.
Opinion rules that a nonlawyer assistant supervised by a lawyer may identify to
the client who is a party to such a transaction the documents to be executed
with respect to the transaction, direct the client as to the correct place on
each document to sign, and handle the disbursement of proceeds for a
residential real estate transaction, even though the supervising lawyer is not
physically present.
2006 Formal Ethics Opinion 13.
Opinion rules that if warranted by exigent circumstances, a lawyer may allow a
paralegal to sign his name to court documents so long as it does not violate
any law and the lawyer provides the appropriate level of
supervision.
2007 Formal Ethics Opinion 3. Opinion
explains the duties of a lawyer who represents a local government and of a
lawyer who is elected to the governing body of the local government relative to
a nonlawyer appearing in a representative capacity for a party at a zoning
variance and other quasi-judicial hearings before the government
body.
2007 Formal Ethics Opinion 12. Opinion rules
that a lawyer may outsource limited legal support services to a foreign lawyer
or a nonlawyer (collectively "foreign assistants") provided the lawyer properly
selects and supervises the foreign assistants, ensures the preservation of
client confidences, avoids conflicts of interests, discloses the outsourcing,
and obtains the client's advanced informed consent.
2008
Formal Ethics Opinion 6. Opinion rules that a lawyer may hire a
nonlawyer independent contractor to organize and speak at educational seminars
so long as the nonlawyer does not give legal advice.
2009
Formal Ethics Opinion 2. Opinion rules a closing lawyer who reasonably
believes that a title company engaged in the unauthorized practice of law when
preparing a deed must report the lawyer who assisted the title company but may
close the transaction if client consents and doing so is in the client's
interest.
2012 Formal Ethics Opinion 10. Opinion rules
a lawyer may not participate as a network lawyer for a company providing
litigation or administrative support services for clients with a particular
legal/business problem unless certain conditions are satisfied.
2012 Formal Ethics Opinion 11. Opinion rules that a law firm may
send a nonlawyer field representative to meet with a prospective client and
obtain a representation contract if a lawyer at the firm has reviewed
sufficient information from the prospective client to determine that an offer
of representation is appropriate.
2013 Formal Ethics Opinion
9. Opinion provides guidance to lawyers who work for a public interest
law organization that provides legal and non-legal services to its clientele
and that has an executive director who is not a lawyer.
Authorized Practice Advisory Opinion 2002-1. Revised January 26,
2012
The North Carolina State Bar has been requested to interpret
the North Carolina unauthorized practice of law statutes (N.C. Gen. Stat.
§§
84-2.1 to
84-5) as they apply to residential
real estate transactions. The State Bar issues the following authorized
practice of law advisory opinion pursuant to N.C. Gen. Stat. §
84-37(f) after
careful consideration and investigation. This opinion supersedes any prior
opinions and decisions of any standing committee of the State Bar interpreting
the unauthorized practice of law statutes to the extent those opinions and
decisions are inconsistent with the conclusions expressed herein.As a result of
its review of the activities of more than 50 nonlawyer service providers since
the adoption of this opinion on January 24, 2003, including injunctions issued
against two companies, the Committee is clarifying the opinion concerning
issues that it has addressed since adoption of the
opinion.
