Regulation of the Legal Profession · 6-12% of the exam
2.2.2Permanent Presence: In-House Counsel and Federal Specialties (Rule 5.5(d))
On this page
- Rule 5.5(d) — Permanent Presence Exceptions
Why
The temporary doorways are built for work that comes and goes, which is not how every legal career is lived. A company's in-house lawyer serves one client daily from one desk, and a patent or immigration practitioner works in a field the federal government already regulates. Without standing exceptions, ordinary careers would be unauthorized practice simply for staying in one place.
Plain English
Two categories may keep a continuous office in a state that has not admitted them. In-house and government counsel serving their employer or its organizational affiliates may do so, though not the personal legal matters of the employer's officers or employees, and must still obtain local admission or pro hac vice before litigating there; where a foreign lawyer must advise on the law of a U.S. jurisdiction, that advice shall be based upon the advice of a lawyer licensed and authorized by the jurisdiction to give it.
Practice authorized by federal or other law, such as patent prosecution before the USPTO and immigration, is likewise permitted.
Context. Rule 5.5(d) creates two narrow, standing exceptions for roles that can't rely on temporary doorways. Two categories allow a lawyer to maintain an office in a state that has not admitted them: in-house or government lawyers serving their employer or its organizational affiliates, and lawyers practicing a specialty that federal or other law specifically authorizes. The employer side of that door reaches the employer's organizational affiliates — entities that control, are controlled by, or are under common control with it — and doesn't stretch to personal legal services for its officers or employees (Comment [16]).
Rule
Rule 5.5(d) — Permanent Presence Exceptions
Gate: A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as in-house counsel under the laws of a foreign jurisdiction.
In-house and government counsel:
May maintain a continuous office presence serving the lawyer's employer or its organizational affiliates — entities that control, are controlled by, or are under common control with the employer (Comment [16])
Does not reach personal legal services for the employer's officers or employees (Comment [16])
Must still obtain pro hac vice admission or local bar admission before litigating in that state
When performed by a foreign lawyer and requiring advice on the law of this or another U.S. jurisdiction or of the United States, that advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice
Practice authorized by federal or other law:
Practice authorized by federal or other law is permitted regardless of state bar admission
Covered examples: patent prosecution before the USPTO; immigration law
Foreign lawyers — who may use the two categories above:
Rule 5.5(d) reaches a lawyer admitted in a foreign jurisdiction; Rule 5.5(c)'s temporary doors do not (Comment [7])
Temporary practice by a foreign lawyer, including services governed primarily by international or foreign law, comes from the separate ABA Model Rule on Temporary Practice by Foreign Lawyers rather than from Rule 5.5(c) (Comment [15])
Subject to greater scrutiny than U.S.-licensed lawyers
Rule 5.5(e)(1): the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction and subject to effective regulation and discipline by a duly constituted professional body or a public authority
Example 1
Ex. 1
Omar holds only a New York license and is in-house counsel for a technology company in Indianapolis. He advises daily on employment, contracts, and compliance. When the company is sued in Indiana state court, Omar drafts and argues a motion to dismiss, assuming his in-house status covers Indiana courtroom appearances.
Resolution. Rule 5.5(d) permits a continuous office presence serving the lawyer's employer or its organizational affiliates. That door stops at the courthouse. Litigating in Indiana requires Indiana bar admission or pro hac vice; without either, Omar's courtroom work is unauthorized practice. Mark where Omar's advising stops and his motion practice begins; his in-house status doesn't cross that line.
Trap
Questions · 2
Q 01ch02-e09
Question 1 of 2 · Rule 5.5(d)(1)
Attorney is admitted only in State A and serves as in-house counsel to a regional bus company headquartered in State B, where Attorney has kept an office for six years. Attorney advises the company daily on employment questions, vendor contracts, and safety compliance, and takes no work from anyone else. A passenger injured in a collision sued the company in a State B trial court. The company's board asked Attorney to handle the defense from answer through verdict rather than pay outside counsel, and Attorney began preparing to do so. Attorney has never been admitted in State B and has not applied for permission to appear in the case. Must Attorney obtain admission or special permission before trying the case?
Keys 1 to 4 choose.