usually ambitious. In-house counsel
need to stay current and maintain com-
munication with key constituents. The
following excerpts from RPC 1. 4, Com-
munication, are critical mandates for
A lawyer shall… ( 2) reasonably con-
sult with the client about the means
by which the client’s objectives are
to be accomplished; ( 3) keep the
client reasonably informed about
the status of the matter.…
The most deadly sin is to delay com-
municating bad news. Promptly commu-
nicate the news and the best solution.
Companies large enough to need in-
house counsel are also usually “multi-
jurisdictional,” extending across state
lines with physical locations, gover-
nance structures, transactions, and on-
going commercial relationships. Some
questions to help frame the issues:
Is it unauthorized practice of law
• Maintain a regular call into another
state to advise organizational con-
• Attend negotiations or other meetings in another state about matters
governed by the laws of that state?
• Maintain a schedule of visiting company locations in multiple states to
provide legal advice to constituents?
• Advise client constituents about another state’s laws?
• Receive calls about FDA rules and
regulations from organizational clients located in many states?
The answers are mostly found in
RPC 5. 5 and ABA Model Rule 5. 5. And
an increasing number of states, including Washington, now have new “house
counsel” admission options.
Temporary Practice Exemptions
Under RPC 5. 5 and Model Rule 5. 5
RPC 5. 5(a) prohibits violating the
practice of law rules of any other jurisdiction and RPC 5. 5(b) prohibits the
unlicensed practice of law (UPL) in
Washington. RPC 5. 5(c) and (d) provide five temporary practice exemptions allowing out-of-state attorneys to
legally perform certain types of work
in Washington. The most important of
these for in-house transaction counsel
is RPC 5. 5(d). It’s almost a blank check
to represent an organization’s constituents in Washington as long as that representation is 1) temporary and 2) does
not require pro hoc vice admission.
All of the activities described in the
five questions above would seem permissible on a temporary basis under
RPC 5. 5(d), with the caveat that UPL
rules don’t explicitly prohibit counseling a client about another state’s laws.
The real question is whether the attorney can competently advise the client
about the other state’s laws — a question that doesn’t always receive proper
Unfortunately, the word “
temporary” is a major limitation within RPC
5. 5(d) and Model Rule 5. 5(d). It prohib-
Robert V. Boeshaar
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