New England Biz Law Update
I am pleased to report ACCA’s effective efforts on an
unauthorized practice of law issue considered in New Hampshire. This article
was submitted through the New Hampshire membership of the Northeast Chapter of
the Association of Corporate Counsel.
In October 2002, the New Hampshire Supreme Court amended
Supreme Court Rule 42 in order to allow attorneys admitted in other
jurisdictions for at least seven years to obtain admission to the New Hampshire
Bar Association without sitting for the New Hampshire Bar Examination. The
rule, as amended, required attorneys seeking admission to describe all
locations where they practiced during the last seven years.
When in-house counsel for New Hampshire-based corporations
sought to take advantage of the rule, they were in for a rude awakening:
Accusations were made that their employment as in-house counsel in New
Hampshire without a license to practice in the state may constitute the
unauthorized practice of law. This not only rendered them potentially
ineligible for admission, but also subject to disciplinary or even criminal
sanctions. The New Hampshire Supreme Court then agreed to review the issue.
A member of ACCA’s Northeast Chapter asked for ACCA’s
assistance.
The member’s law firm, (Devine Millimet of Manchester, N.H.)
met with New Hampshire Attorney General Peter Heed and his staff, and with
officials of the New Hampshire Bar Association, and explained that the policies
which underlie the prohibition against the unauthorized practice of law are not
implicated in the case of corporate counsel who almost invariably are employed
by a single, sophisticated employer and who routinely seek the assistance of
local counsel for matters requiring expertise in local law. There is, in other words, no risk that
consumers of legal services will be misled or otherwise harmed by the services
performed by “unlicensed” in-house counsel.
ACCA then submitted a brief to the New Hampshire Supreme
Court, as did the New Hampshire Attorney General, the New England Legal
Foundation and the New Hampshire Bar Association, all of which argued that the
practice of law by in-house counsel should not be considered the unauthorized
practice of law.
As a result of these efforts, on Dec. 30, 2003, the New
Hampshire Supreme Court adopted an amendment to Supreme Court Rule 42 (10)(c),
which provides, inter alia, that “an applicant’s service as corporate counsel
shall not constitute the unauthorized practice of law in New Hampshire.”
Although this amendment is temporary (pending review by the
Court’s Advisory Committee on Rules), ACCA is optimistic that it will become
permanent, thus eliminating any question that corporate counsel based in New
Hampshire are not required to be licensed in the state and, also, paving the
way for such licensure should they so desire.
(This article was prepared with the assistance of the
Manchester, N.H. law firm of Devine Millimet.)
Thomas C. Farrell is president of the Northeast Chapter
of the Association of Corporate Counsel and is deputy general counsel of
SimplexGrinnell LP, a part of Tyco Fire & Security.
