D.c Ct. App. 49
The District of Columbia Court of Appeals and the Superior Court of the District of Columbia are not courts of the United States within the meaning of this Rule 49(c)(3).
D.c Ct. App. 49
COMMENTARY
The following Commentary provides guidance for interpreting and complying with Rule 49, but in proceedings before the court or the Committee on Unauthorized Practice of Law, the text of Rule 49 will govern.
Commentary to Rule 49(a):
Rule 49 is applied first by determining whether the conduct in question falls within the definitions of practicing law or holding out in the District of Columbia. If the conduct falls within those definitions, then the conduct by a person who is not a D.C. Bar Member is a violation of Rule 49, unless one or more of Rules 49(c)(1)-(13) authorizes the conduct. (Notwithstanding the prohibitions of Rule 49, a person licensed to practice as a Special Legal Consultant may render legal services in the District of Columbia, and may hold as authorized to do so, to the extent permitted by, and subject to the conditions in, Rule 46.)
While one has a right to represent oneself, one has no right to represent or advise another as an attorney. Authority to provide legal services to others is a privilege granted only to those who have the education, competence, and fitness to practice law. When a person is formally recognized to possess those qualifications by membership in the District of Columbia Bar, one is authorized to practice law.
Rule 49 prohibits both the implicit representation of authority or competence by engaging in the practice of law and the express holding out of oneself as authorized or qualified to practice law in the District of Columbia, unless a person is a D.C. Bar Member or otherwise authorized to practice law.
The rule against unauthorized practice of law has four general purposes:
(1) to protect members of the public from persons who are not qualified by education, competence, and fitness to provide professional legal advice or other legal services;
(2) to ensure that those who practice law in the District of Columbia or hold out as authorized to do so are subject to the disciplinary system of the District of Columbia Bar;
(3) to maintain the efficacy and integrity of the administration of justice and the system of regulation of practicing attorneys; and
(4) to ensure that the activities of the District of Columbia Bar are appropriately supported financially by those exercising the privilege of law practice in the District of Columbia.
Education, competence, and fitness to practice law are safeguarded by the examination and character screening requirements of the admissions process, and by the disciplinary system. The District of Columbia Bar further protects the interests of members of the public by maintaining a clients' security fund through membership dues.
Commentary to Rule 49(b)(2):
The definition of "practice law" in Rule 49(b)(2) is designed to focus on the two essential elements of the practice of law: (1) the provision of legal services and (2) a client relationship of trust or reliance. A person who provides legal services to another within a client relationship of trust or reliance implicitly represents that the person is authorized and competent to provide them- just as one who provides any services requiring special skill gives an implied warranty that they are provided in a good and workmanlike manner. See, e.g., Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1200 (D.C. 1984); Carey v. Crane Serv. Co., 457 A.2d 1102, 1107 (D.C. 1983).
Recognizing that the definition of "practice law" may not anticipate every relevant circumstance, the Court has provided three other tools to assist in defining the phrase: (1) an enumerated list of the most common activities that are rebuttably presumed to be the practice of law; (2) this commentary; and (3) where further questions of interpretation may arise, opinions of the Committee on Unauthorized Practice of Law, as provided in Rule 49(d)(14).
The definition of "practice law," the list of activities, this commentary, and opinions of the Committee on Unauthorized Practice of Law are to be considered and applied in light of the purposes of Rule 49, as set forth in the commentary to Rule 49(a).
The presumption that a person engaged in an activity enumerated in Rule 49(b) is practicing law may be rebutted by showing that the activity does not involve a client relationship of trust or reliance, that the person has made no explicit or implicit representation of authority or competence to practice law, or that neither condition is present.
While Rule 49 is meant to embrace every client relationship in which legal services are rendered, or one holds oneself out as authorized or competent to provide legal services, Rule 49 is not intended to cover conduct that lacks the essential features of an attorney-client relationship.
For example, a law professor instructing a class in the application of law to a particular, real situation is not engaged in the practice of law because the professor is not undertaking to provide advice or services for one or more clients as to their legal interests. An experienced industrial relations supervisor is not engaged in the practice of law when advising the person's employer what the firm must do to comply with state or federal labor laws, because the employer does not reasonably expect it is receiving a professional legal opinion. Law clerks, paralegals and summer associates are not practicing law if they do not advise clients or otherwise hold themselves out to the public as having authority or competence to practice law. Tax accountants, real estate agents, title company personnel, financial advisors, pension consultants, claims adjusters, social workers, and the like who do not indicate they are providing legal services based on education, competence, and authority to practice law, are not engaged in the practice of law, because their relationship with the customer is not based on the reasonable expectation that learned and authorized professional legal services are being given. Nor is it the practice of law under Rule 49 for a person to draft an agreement or resolve a controversy in a business context, where no reasonable expectation exists that the person is acting as a qualified or authorized attorney. Consistent with the holding of Merrick v. American Securities & Trust Co., Rule 49 recognizes that one is not presumed to be practicing law when preparing a routine legal document incidental to a regular course of business as a non-attorney. See 107 F.2d 271, 274 (D.C. Cir. 1939) (drawing a distinction between "drafting legal papers as a business and drafting legal papers pertinent to other business which the [organization] was authorized to carry on") (emphasis added).
Rule 49 is not intended to forbid a person from acting as a mediator, arbitrator, or other alternative dispute resolution provider. This intent is expressed in the first sentence of the definition of "practice law," which requires the presence of two essential factors: The provision of legal services and a client relationship of trust or reliance. Mediators and arbitrators ordinarily do not form a client relationship of trust or reliance, and it is common for providers of mediation and arbitration services to advise participants that they are not providing the services of legal counsel.
Rule 49 is not meant to preclude persons who are not D.C. Bar Members from lobbying legislative or executive branch officials or agencies-including through preparing or expressing legal opinions, written or oral advocacy, preparation of position papers, or strategic advice-so long as the activities are intended to influence legislative lawmaking functions, as opposed to investigative, enforcement, or adjudicative functions. Permissible lobbying activities are not provided based on a reasonable expectation that learned and authorized professional legal services are being given in an attorney-client relationship. Some activities that have a relationship with legislative actions may constitute the practice of law. For example, advising a client about how testimony before Congress might affect pending or prospective criminal or civil litigation may constitute the practice of law. See D.C. UPL Comm. Op. 19-07.
Neither is Rule 49 intended to forbid a person from counseling or representing another person without compensation in proceedings or before bodies that are purely internal to an organization and that do not result in decisions directly appealable to a court, such as disciplinary or similar proceedings internal to a university, labor union, fraternity or sorority, religious organization, club, or membership organization.
Regarding discovery service companies and document reviewers, terms like "document review" and "the discovery process" encompass numerous discrete tasks, some of which involve the application of legal judgment, and some of which do not. These companies and persons do not violate Rule 49 when performing work that does not involve the application of legal knowledge, training, or judgment, and when the person is not held out or billed as an attorney. See D.C. UPL Comm. Op. 21-12. When a person is hired and billed as an attorney, the person is generally engaged in the practice of law, and is certainly being held out as authorized to practice law. Clients would reasonably assume that a person held out as a "contract lawyer" or "contract attorney," for example, performs functions that are different in degree, if not in kind, from those performed by paralegals or law clerks, and the cost of services performed by contract attorneys reflects the legal training and judgment that they bring to the work they perform. In addition, if a contract attorney is supervised not as a paralegal or law clerk but as a subordinate attorney would be supervised, the contract attorney is engaged in the practice of law. D.C. UPL Comm. Op. 16-05.
While payment of a fee is often a strong indication of an attorney-client relationship, it is neither essential nor dispositive.
Ordinarily, a person who provides or offers to provide legal services to clients in the District of Columbia implicitly represents to the consumer that the person has the education, competence, and authority to practice law in the District of Columbia. It is not sufficient for a person who is not a D.C. Bar Member merely to give notice that the person is not an attorney while engaging in conduct that is likely to mislead others into believing that the person is authorized to practice law. Where consumers continue to seek services after this notice, the provider must take special care to assure that they understand that the person they are consulting does not have the authority and competence to provide legal services in the District of Columbia. See In re Banks, 561 A.2d 158 (D.C. 1987).
Rule 49 also confines the practice of law to provision of legal services for another. People who represent themselves are not required to be admitted to the District of Columbia Bar.
Regarding "furnishing" attorneys, individual attorneys and non-attorneys commonly refer or recommend attorneys in a wide variety of circumstances without violating Rule 49. The term 'furnishing' within the meaning of Rule 49(b)(2)(F) involves more than simply recommending a particular attorney. Rule 49(b)(2)(F) is generally addressed to the business of providing attorneys, or systematically referring attorneys, in response to requests from non-attorney members of the public for representation in a specific, pending legal matters. This activity is included in the definition of the 'practice of law,' because, properly made, attorney referrals generally involve the exercise of the trained judgment of an attorney. See D.C. UPL Comm. Op. 6-99. The basic concern behind Rule 49(b)(2)(F) is that a non-attorney member of the public seeking an attorney for a particular matter will rely inappropriately on the judgment of non-attorneys who are regularly engaged in referring attorneys for similar matters.
Temporary attorney placement services lawfully may provide names of attorneys to law firms or legal departments, provided, however, that an attorney at the law firm or law department, possessing an attorney-client relationship with the client, selects the temporary attorney. In these circumstances, temporary attorney services do not exercise, or purport to exercise, professional legal judgment, as they leave the selection of candidates to the judgment of the attorneys responsible for the matter or matters requiring temporary professional assistance. See D.C. UPL Comm. Op. 6-99. Furthermore, discovery services companies do not run afoul of Rule 49 by handling the administrative aspects of hiring and supervising a document review attorney. This could include interviewing individuals to create a roster of attorneys available to assist with document review projects, providing the attorney's working space and equipment, ensuring that the person works a regular day and works at an acceptable pace, providing salary and benefits, and similar supervisory activities that do not require the application of professional legal judgment. See D.C. UPL Comm. Op. 21-12.
As another example, advocacy organizations such as the American Civil Liberties Union and the National Association for the Advancement of Colored People would not engage in unauthorized practice of law by systematically referring attorneys to potential clients, provided a D.C. Bar Member within the organization was responsible for the referral judgment. See D.C. UPL Comm. Op. 4-98 (discussing the American Civil Liberties Union and the National Association for the Advancement of Colored People). In that circumstance, only qualified attorneys subject to the regulatory and disciplinary system of the District of Columbia will be making professional judgments on the appropriate attorneys to which specific clients should be referred for representation in specific matters.
A non-lawyer's mere request for a continuance from a government agency, court, or other tribunal on behalf of another for no fee does not, in and of itself, constitute law practice. See, e.g., Superior Court Rule of Civil Procedure 101(a); Superior Court Rule of Procedure for the Landlord and Tenant Branch 9(a); Superior Court Rule of Procedure for the Small Claims and Conciliation Branch 9(a).
Commentary to Rule 49(b)(3):
Rule 49(b)(3) clarifies the geographic extent of Rule 49.
Rule 49 is intended to regulate all practice of law within the boundaries of the District of Columbia. The fact that an attorney is associated with a law firm that maintains an office in the District of Columbia does not, of itself, establish that that attorney is maintaining an office in the District of Columbia or holding out as authorized to practice in the District of Columbia.
The practice of law subject to Rule 49 is not confined to matters subject to District of Columbia law. Rule 49 applies to the practice of all substantive areas of the law and requires admission to the District of Columbia Bar where the practice is carried on in the District of Columbia and is not authorized by any of Rules 49(c)(1)-(13). It applies to legal services in the District of Columbia even if those legal services pertain to a matter involving federal law, foreign law, or the law of a state or territory.
A person is engaged in the practice of law in the District of Columbia when the person provides legal services from an office or location within the District. That is true if the person practices in a residence or in a commercial building; if all of the person's clients are located in other jurisdictions; if the person provides legal services only by telephone, letter, e-mail, or other means; if the person provides legal services only concerning the laws of jurisdictions other than the District of Columbia; or if the person informs the client that the person is not authorized to practice law in the District of Columbia and does not provide advice about District of Columbia law. An attorney in the District of Columbia who advises clients or otherwise provides legal services in another jurisdiction also may be subject to the rules of that jurisdiction concerning unauthorized practice of law.
The prohibition on unauthorized practice applies only if an attorney is physically present in the District of Columbia at least once during the course of a matter. Even if a matter involves a client, and a dispute or transaction, in the District, the prohibition on unauthorized practice does not apply if an attorney located outside the District advises a client in-person only when the client visits the attorney in the attorney's office, or if the attorney advises the client only by telephone, regular mail, or e-mail. However, if an attorney is physically present in the District even once during the course of a matter, the attorney may be engaged in the District of Columbia in the practice of law with respect to the entire matter, even if the attorney otherwise operates only from a location outside the District.
The definition of "in the District of Columbia" is intended to cover the practice of law within the District under the supervision of, or in association with, a D.C. Bar Member. Persons who provide legal services to one or more clients from a location in the District of Columbia, with or without bar memberships elsewhere, are practicing law in the District and are in violation of Rule 49, unless their practice is authorized by one or more of Rules 49(c)(1)-(13).
For a discussion of telecommuting/teleworking/working from home, see the Commentary to Rule 49(c)(13) ("Incidental and Temporary Practice").
For a discussion of the geographic reach of Rule 49 as applied to discovery services companies, see D.C. UPL Comm. Op. 21-12.
Commentary to Rule 49(b)(4):
Persons who are not D.C. Bar Members must avoid giving the impression that they are qualified legal professionals subject to the ethical standards and discipline of the District of Columbia Bar.
The listing of terms that normally indicate one is holding oneself out as authorized or qualified to practice law is not intended to be exhaustive. Experience has shown that the listed terms are often used to misleadingly represent that an individual is authorized to provide legal services. The definition of "hold out" is intended to cover any conduct that gives the impression that one is qualified or authorized to practice. See In re Banks, 561 A.2d 158 (D.C. 1987). The terms "associate" or "counsel," when used in a legal context, convey to members of the public that an individual is authorized to practice law. See D.C. UPL Comm. Op. 22-17.
To avoid improper holding out, lobbyists practicing with a District of Columbia law firm who are not D.C. Bar Members must make clear that they are not and that their practice is limited to lobbying matters that do not constitute the practice of law. See D.C. UPL Comm. Op. 19-07.
A non-attorney who holds himself or herself out as the functional equivalent of an attorney may violate Rule 49 and may be liable under the District of Columbia's consumer-protection statutes even if the recipient of the services knows that the services are not being provided by a D.C. Bar Member or other attorney. See Banks v. District of Columbia Dep't of Consumer & Regulatory Affairs, 634 A.2d 433 (D.C. 1993).
Although Rule 49 's prohibition on unauthorized practice is limited to conduct within the District of Columbia, a person located outside of the District of Columbia may still violate Rule 49 by holding out as authorized to practice law in the District of Columbia, such as by associating himself or herself with an address or post office box in the District of Columbia in connection with law-related communications.
Commentary to Rule 49(b)(9):
Rule 49 employs the supervision standard of Rule 5.1 of the Rules of Professional Conduct. That Rule requires the supervising attorney to make reasonable efforts to ensure conformity with, among other Rules, Rule 1.1 requiring competent representation and Rule 1.3 requiring zealous and diligent representation within the bounds of the law. Whether reasonable supervision requires the supervising attorney to attend personally with the supervised attorney a trial, hearing, or meeting depends on the circumstances. That is true in both litigation and non-litigation matters. The supervising attorney should consider all factors relevant to the appropriate degree and manner of supervision, including the experience and skill of the supervised attorney and the nature of the matter. Thus, in deciding whether to be present for a trial, hearing, or conference before a court or other tribunal, the supervising attorney should consider, among other factors, the experience and skill of the supervised attorney, the nature of the case, and the type of proceeding. For example, whether the supervising attorney should be present at a jury trial depends in part on the nature and extent of the supervised attorney's prior jury trial experience, and in-person supervision may not be necessary if the supervised attorney has extensive experience trying similar cases in other jurisdictions where the person is licensed or has been admitted pro hac vice. In some situations, a responsible supervisor ought to be present in court with the supervised attorney, but in others, the supervisor may reasonably decide that the supervisor does not need to be present.
Whether or not the supervising attorney is physically present when the supervised attorney provides legal services, the supervising attorney remains accountable under Rule 5.1(b) if the supervising attorney fails to make reasonable efforts to ensure that the other attorney conforms to the Rules of Professional Conduct.
Commentary to Rule 49(c)(1):
Departments, agencies, and courts of the federal government are entitled to advice and representation from their employees as part of their official duties. This advice and representation includes both internal consultation and external representation in contact with the public and the courts.
Commentary to Rule 49(c)(2):
Rule 49(c)(2) provides a limited exception to the requirement for admission to the District of Columbia Bar for persons who practice before federal and District of Columbia agencies in certain circumstances.
The United States Supreme Court has held that states may not limit practice before a federal government agency, or conduct incidental to that practice, where the agency maintains a registry of practitioners and regulates standards of practice with sanctions of suspension or disbarment. Sperry v. Florida, 373 U.S. 379 (1963).
As the seat of the national government, the District of Columbia is naturally the place where people locate to provide representation of persons or entities petitioning federal departments or agencies for relief. Inasmuch as this activity would often constitute the practice of law, the Supremacy Clause of the United States Constitution, case law, and comity between the District and federal governments counsel deference to federal departments and agencies that determine to allow persons not admitted to the Bar to practice before them. At the same time, experience under this rule has shown that some persons have abused the deference set forth in the original rule by engaging in misleading holding out or practicing law in proceedings other than those of the authorizing federal fora.
With respect to persons who hold out and purport to provide legal representation before federal fora from locations outside the District of Columbia, Rule 49 does not apply because the activity, even if the practice of law, is not carried on "in the District of Columbia." See Rule 49(b)(3) and commentary thereto.
Rule 49(c)(2) is designed to permit persons to practice before a government department or agency without becoming members of the Bar where the practice is authorized by law or agency rule, where the agency has a rule to regulate the practice, and where the public is adequately informed of the limited nature of the person's authority to practice.
In many instances, persons seeking representation involving jurisdiction of federal departments and agencies also have rights to plead their claims before the courts. Advising persons whether they have rights to pursue their claims beyond federal agencies into the courts, or representing entities in challenges to or review of federal agency action in federal courts, would, without more, not require that the advisor be a D.C. Bar Member, because this advice is reasonably ancillary to representation before the agency and is subject to the jurisdiction of the federal courts. See Rule 49(c)(3). Rule 49(c)(2) does not, however, otherwise authorize advice to or representation of persons in the courts.
Rule 49(c)(2) also authorizes practice before certain District of Columbia fora. This provision was added in recognition that some of the foregoing considerations support allowing persons not admitted as attorneys to represent members of the public before some District of Columbia fora. In addition, some client matters may warrant a practitioner taking simultaneous or coordinated actions in federal and District of Columbia fora.
To be clear, neither Rule 49(c)(2) nor anything else in Rule 49 authorizes persons who are not D.C. Bar Members to provide legal services to another person merely because those legal services concern federal law. See Kennedy v. Bar Ass'n of Montgomery County, Inc., 561 A.2d 200, 208-09 (Md. Ct. App. 1989) ("[A]dvising clients by applying legal principles to the client's problem is practicing law....This is so whether the legal principles [applied are] established by the law of Montgomery County, the State of Maryland, some other state of the United States, the United States of America, or a foreign nation."); Bluestein v. State Bar, 13 Cal. 3d 162, 173-74 (1974) (holding that "law," as used in the California statute barring unauthorized practice, includes foreign law); In re Roel, 144 N.E.2d 24, 26 (N.Y. 1957) ("Whether a person gives advice as to New York law, Federal law, the law of a sister State, or the law of a foreign country, he is giving legal advice."). Rule 49 includes no "federal law" exception to its general prohibition on the practice of law by persons who are not D.C. Bar Members.
Persons could satisfy the notice requirement of Rule 49(c)(2)(B) with prominent written statements that, for example, the person is "not admitted to the D.C. Bar; practice limited to matters before the U.S. Patent & Trademark Office" or "Admitted only in Virginia; practice limited to matters before federal courts, federal agencies, and District of Columbia agencies." See D.C. UPL Comm. Op. 5-98.
Commentary to Rule 49(c)(3):
Practice before the courts of the United States is a matter committed to the jurisdiction and discretion of those entities. If a practitioner has an office in the District of Columbia and is admitted to practice before a federal court in the District of Columbia but is not a D.C. Bar Member, the practitioner may use the District of Columbia office to engage in the practice of law before that federal court, but only if the practitioner provides clear notice in all business documents, including advertisements and social media, that the practitioner is not a D.C. Bar Member and that the practice is limited to matters before that federal court (or to other matters authorized by Rule 49(c)(2), (c)(3), (c)(6), (c)(9), (c)(10), or (c)(12).). Rule 49(c)(3) applies only if a person's entire practice in the District of Columbia is authorized by one or more of Rules 49(c)(2), (c)(3), (c)(6), (c)(9), (c)(10), or (c)(12); if any part of the person's law practice is not so authorized, Rule 49 requires a practitioner with an office in the District of Columbia to be a D.C. Bar Member. The rules of federal courts in the District of Columbia may or may not authorize admission, on a regular or pro hac vice basis, of an attorney with an office in the District of Columbia if the attorney is not a D.C. Bar Member.
Again, to be clear, neither Rule 49(c)(3) nor anything else in Rule 49 authorizes persons who are not D.C. Bar Members to provide legal services to another merely because those legal services concern federal law.
Persons could satisfy the notice requirement of Rule 49(c)(3) with prominent written statements that, for example, the person is "not admitted to the D.C. Bar; practice limited to U.S. courts" or "Admitted only in Maryland; practice limited to matters before federal courts, federal agencies, and District of Columbia agencies." See D.C. UPL Comm. Op. 5-98.
Commentary to Rule 49(c)(4):
Permission for District of Columbia employees to practice in the District is more limited than permission for United States employees. Departments, agencies, and courts of the District of Columbia are entitled to legal services from their employees as part of their official duties under the circumstances set forth in Rule 49(c)(4). These legal services include both internal consultation and external representation in contact with the public and the courts.
Commentary to Rule 49(c)(5):
In keeping with federal labor policy, many disputes arising under a collective bargaining agreement between a labor organization or worker, on the one hand, and an employer, on the other hand, are resolved through labor arbitration. While attorneys are involved in some matters of this nature, it is common for the parties to be represented by non-attorneys (whether a union representative or a labor relations officer of the employer). At the early stages of the grievanceresolution process, which can include informal hearings that are necessary steps before arbitration, the use of attorneys is even more rare. Some states have addressed this issue through specific rules which expressly permit non-attorney representation in labor arbitration. See Cal. Code of Civil Procedure § 1282.4(h); Washington Rules of Court, General Rule 24(b)(5). The Supreme Court has written:
The right of [union] members to consult with each other in a fraternal organization necessarily includes the right to select a spokesman from their number who could be expected to give the wisest counsel. . . . [A State] undoubtedly has broad powers to regulate the practice of law within its borders, but we . . . recognize that in regulating the practice of law a State cannot ignore the rights of individuals secured by the Constitution. . . . [F]or them to associate together to help one another to preserve and enforce rights granted them under federal laws cannot be condemned as a threat to legal ethics.
Bhd. of RR Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 6-7 (1964); see also UMWA v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967) ("That the States have broad power to regulate the practice of law is . . . beyond question. . . . But it is equally apparent that broad rules framed to protect the public and to preserve respect for the administration of justice can in their actual operation significantly impair the value of associational freedoms.").
Rule 49(c)(5) recognizes the federal policy to facilitate the inexpensive and informal protection of workers' and employers' rights protected by federal labor law, and it recognizes the practical reality that non-attorneys for decades have played important representational functions in the context of negotiations, grievances, and arbitrations connected to collective bargaining agreements.
Commentary to Rule 49(c)(6):
Rule 49(c)(6) addresses in-house attorneys and others who are employed to provide legal advice, and only advice, to their employer or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. The provision of legal advice by in-house counsel or advisors 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 employee's qualifications and the quality of the employee's work.
For example, an internal personnel manager advising her employer on the requirements of equal employment opportunity law, or a purchasing manager who drafts contracts, fall within Rule 49(c)(6), as they do not give the employer a reasonable expectation that it is being served by a D.C. Bar Member. Similarly, an employee on the staff of a trade association who gives only advice concerning leases, personnel, and contractual matters would be covered by Rule 49(c)(6) if, in fact, the employee does not give the employer reason to believe that the employee is a D.C. Bar Member.
Rule 49(c)(6) provides a limited exception arising from the position of the employee, the confinement of the employees's professional services to activities internal to the employer, and the absence of conduct creating a reasonable expectation that the employer is receiving the services of a D.C. Bar Member.
Rule 49(c)(6) does not authorize employees to represent other individual employees of their employer or its affiliates.
Commentary to Rule 49(c)(7):
The District of Columbia courts are open to attorneys from other jurisdictions. As the Court of Appeals has observed, however:
[A] ppearance pro hac vice is meant to be an exception to the general prohibition against practicing law in the District without benefit of membership in the District of Columbia Bar. As an exception, it is equally clear[] that it is designed as a privilege for an out-of-state attorney who may, from time to time, be involved in a particular case that requires appearance before a court in the District.
Brookens v. Comm. on Unauthorized Practice of Law, 538 A.2d 1120, 1124 (D.C. 1988).
The fact that an attorney is associated with a law firm that maintains an office in the District of Columbia does not, of itself, establish that that attorney is maintaining an office in the District of Columbia.
The pro hac vice exception has occasionally been abused to allow persons who regularly operate from a location within the District of Columbia or its surrounding jurisdictions to engage regularly in litigation practice before the District of Columbia courts. Accordingly, a person generally may not apply for admission pro hac vice in more than five cases pending in District of Columbia courts per calendar year.
The scope of services that are covered by Rule 49(c)(7) includes legal services that are rendered both "in" a court proceeding and also those that are "reasonably related" to the proceeding. The court "proceeding"-to which the legal services must be related-is defined broadly. Specifically, the court proceeding need not be "pending" when legal services are rendered for the services to be covered; services that are reasonably related to a "potential proceeding" in a D.C. court also qualify. Thus, for example, legal services provided to a respondent in an attorneydiscipline proceeding may be within the scope of the pro hac vice exception because they are reasonably related to potential proceedings in the D.C. Court of Appeals. See D.C. UPL Comm. Op. 23-18. As another example, legal services provided to an applicant to the District of Columbia Bar in connection with a formal hearing before the Committee on Admissions or provided to a respondent in connection with a formal hearing before the Committee on the Unauthorized Practice of Law are within the scope of the pro hac vice exception if the requirements of Rule 49(c)(7) are met.
Commentary to Rule 49(c)(8):
Rule 49(c)(8) is designed to provide a one-time grace period within which attorneys admitted in other jurisdictions who wish to practice law in the District of Columbia may do so under the supervision of one or more D.C. Bar Members, while they promptly pursue admission to the District of Columbia Bar.
Regarding the notice requirement, persons could satisfy it with prominent written statements that, for example, the person is "not admitted to the D.C. Bar; practice supervised by D.C. Bar Members" or "Admitted only in Maryland; practice supervised by D.C. Bar Members." See D.C. UPL Comm. Op. 5-98. The term "admission pending" may not be used. That term is likely to be misleading because it implies that the grant of a pending application for admission to the D.C. Bar is a formality. Even if an individual meets some of the requirements for applying for admission to the D.C. Bar, admission to the D.C. Bar is not automatic. See D.C. UPL Comm. Op. 20-08. The term "application pending" may raise similar concerns, depending on context. See id.
A person practicing under Rule 49(c)(8) need not apply for admission pro hac vice to appear in the Superior Court of the District of Columbia or the District of Columbia Court of Appeals. This represents a departure from a prior version of Rule 49(c)(8), and Opinion 18-06 of the Committee is no longer applicable.
Commentary to Rule 49(c)(9):
Rule 49(c)(9) is intended to increase access to justice in the District of Columbia for those unable to afford an attorney by providing an exception to the requirement of admission to the District of Columbia Bar for attorneys formerly admitted in the District of Columbia or currently or formerly admitted in other United States jurisdictions (or law school graduates who are awaiting their bar application results) so that they may provide pro bono representation where the requirements of the exception are met.
Regarding the notice requirement in Rule 49(c)(9)(C), persons could satisfy it with prominent written statements that, for example, the person is "not admitted to the D.C. Bar; practice supervised by D.C. Bar Members" or "Admitted only in Maryland; practice supervised by D.C. Bar Members." See D.C. UPL Comm. Op. 5-98.
Commentary to Rule 49(c)(10):
Rule 49(c)(10) is intended to give a rule-based authorization to the number of individual-and group-assistance programs, services, and projects that the courts of the District of Columbia have approved or in the future may approve.
Commentary to Rule 49(c)(11):
Landlord-tenant disputes and small claims matters may not, as a general matter, warrant the expense of hiring an attorney. Rule 49(c)(11) therefore creates an exception to the general prohibition on law practice by persons who are not D.C. Bar Members for the three situations referenced in Rule 49(c)(11).
Rule 49(c)(11) does not authorize a person who is not a D.C. Bar Member to appear in a representative capacity in an action that has been filed in the Landlord and Tenant Branch of the Civil Division of the Superior Court, except for the purpose of entering a consent judgment. Nor does it authorize a person who is not a D.C. Bar Member to appear on behalf of a plaintiff, crossclaimant, or counterclaimant in the Small Claims and Conciliation Branch of the Civil Division of the Superior Court, or to appear on behalf of any party if a case is certified to the Civil Actions Branch.
Commentary to Rule 49(c)(12):
Rule 49(c)(12) furthers the efficient and expeditious resolution of disputes outside the judicial process, to the extent consistent with the broader public interest. This provision gives clients who agree to resolve their disputes through mediation or arbitration or other dispute resolution proceedings in the District of Columbia the option to retain attorneys not admitted in the District of Columbia. This rule is intended to be analogous to the pro hac vice exception in Rule 49(c)(7).
Rule 49(c)(12) allows attorneys to represent clients in mediation, arbitration, or other alternative dispute resolution proceedings that require more than incidental or temporary presence in the District. Separate from the authority granted by Rule 49(c)(12), an attorney may represent parties in mediation, arbitration, or other alternative dispute resolution proceedings under Rule 49(c)(13) if the attorney's presence in the District is incidental and temporary.
As explained in the Commentary to Rule 49(b)(2), attorneys who serve as arbitrators, mediators, or other kinds of neutrals are not engaged in the practice of law.
Commentary to Rule 49(c)(13):
There are occasions in which an attorney admitted in another jurisdiction may provide legal services on a temporary basis in the District of Columbia under circumstances that do not create an unreasonable risk to the interests of their clients, the public, or the courts. Rule 49(c)(13) authorizes law practice in two circumstances.
There is no single test to determine whether an attorney's services are provided on a "temporary" basis in the District, and may therefore be permissible under Rule 49(c)(13). Services may be "temporary" even though the attorney provides services in the District on a recurring basis, or for an extended period of time, as when the attorney is representing a client in a single lengthy negotiation or litigation. For example, an attorney who spends several weeks or even months in the District in connection with a case that does not involve the District and that is pending in a court outside the District may be only temporarily in the District for purposes of Rule 49(c)(13). If an attorney's principal place of business is in the District, the attorney is not practicing law in the District on a temporary basis.
Rule 49(c)(13) provides that an attorney rendering services in the District on a temporary basis does not violate Rule 49 when the attorney engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the attorney is admitted or in which the attorney reasonably expects to be admitted pro hac vice. Examples of permissible conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, an attorney admitted only in another jurisdiction may engage in conduct temporarily in the District in connection with pending litigation in another jurisdiction in which the attorney is or reasonably expects to be authorized to appear, including taking depositions in the District.
An attorney rendering services in the District on a temporary basis does not violate Rule 49 when the services arise out of or are reasonably related to the attorney's practice in a jurisdiction in which the attorney is admitted. Several factors may be relevant to whether the services provided in the District of Columbia arise out of or are reasonably related to an attorney's practice in a jurisdiction in which the lawyer is admitted. The attorney's client may have been previously represented by the attorney, or may be resident in or have substantial contacts with the jurisdiction in which the attorney is admitted. The matter, although involving other jurisdictions, may have a significant connection with the jurisdiction in which the attorney is admitted. In other cases, significant aspects of the attorney's work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their attorney in assessing the relative merits of each. In addition, the services may draw on the attorney's recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally uniform, foreign, or international law. Another relevant factor is whether the attorney not admitted to the District of Columbia Bar is the only attorney for a party, or whether the attorney is co-counsel or the attorney's role is limited to one aspect of a transaction with respect to which a D.C. Bar Member is lead counsel. For example, where a transaction concerns real estate located in the District of Columbia, an attorney based outside the District who comes to the city to provide legal services to a client located inside or outside the District relating only to the federal tax aspects of the transaction may qualify under Rule 49(c)(13). However, an attorney based outside the District who comes to the city to be primary counsel to a District-based client with respect to all aspects of the real estate transaction may not qualify under Rule 49(c)(13). Whether the attorney who is not admitted to the District of Columbia Bar and whose principal office is outside the District is associated with or supervised by a D.C. Bar Member is a relevant, but not controlling, factor in determining whether the attorney's practice in the District is authorized by Rule 49(c)(13).
Legal services provided in connection with a matter pending in a government agency, court, or other tribunal in the District of Columbia generally are not authorized by Rule 49(c)(13). Legal services provided in connection with a matter pending before a congressional committee often are.
Rule 49(c)(13) permits a person authorized to practice law in another country to practice law in the District on an incidental and temporary basis, subject to the specified conditions. Those conditions, including the requirements that a foreign attorney be authorized to practice law in a foreign country and not be disbarred or suspended in any jurisdiction, are consistent with the requirements in Rule 46(f) concerning special legal consultants that the foreign attorney be in good standing as an attorney or counselor at law (or the equivalent of either) in the country where the person is authorized to practice law.
A person who occasionally practices law from the person's residence in the District of Columbia, either by telecommuting or working from home, or who practices temporarily from a hotel or short-term rental accommodation while on vacation in the District of Columbia, does not violate Rule 49, provided the person: (1) maintains a law office in a jurisdiction where the attorney is admitted to practice; (2) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia; and (3) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.
A contract attorney who regularly takes short-term assignments in the District of Columbia is not engaged in temporary practice here, even if each assignment, considered in isolation, might constitute temporary practice. See D.C. UPL Comm. Op. 16-05. Regular work exceeds what Rule 49(c)(13) authorizes.
Commentary to Rule 49(d):
Rule 49(d) sets forth the mandate, powers, and procedures of the Committee on Unauthorized Practice of Law. The United States Court of Appeals for the District of Columbia Circuit has observed:
The Committee members' work is functionally comparable to the work of judges. . . .They serve as an arm of the court and perform a function which traditionally belongs to the judiciary. . . . [T]he Committee acts as a surrogate for those who sit on the bench. Indeed, were it not for the Committee, judges themselves might be forced to engage in the sort of inquiries [authorized by Rule 49] .
Simons v. Bellinger, 643 F.2d 774, 780-81 (D.C. Cir. 1980).
It is expected that most matters considered by the Committee will be resolved through informal proceedings.
Commentary to Rule 49(e):
The powers and procedures provided in Rule 49(d) and (e) are not the exclusive means for enforcing the provisions of this rule. Disciplinary Counsel may initiate an original proceeding before the Court of Appeals for contempt where it alleges that the respondent has violated Rule 49 by practicing law while disbarred. In re Burton, 614 A.2d 46 (D.C. 1992). Disciplinary Counsel may also rely on unauthorized law practice in opposing reinstatement of an attorney suspended from the District of Columbia Bar. In re Stanton, 532 A.2d 95 (D.C. 1987). The District of Columbia courts have subject matter jurisdiction to consider original complaints of unauthorized practice of law initiated by private parties and to issue relief if unauthorized practice is found. J.H. Marshall & Assocs., Inc. v. Burleson, 313 A.2d 587 (D.C. 1973).