Foreign lawyers and foreign in-house lawyers may serve as Authorized House Counsel in Florida, now that the Florida Supreme Court adopted an amended model rule of the American Bar Association's Model Rules of Professional Conduct, which was developed by the ABA Section of International Law.
What it means
The new rules are good for business. Foreign companies looking to become established in Florida can bring and rely upon trusted counsel from home jurisdictions without the risk of unauthorized practice of law issues and breach of the attorney-client relationship.
Florida appears to be the first state to adopt the new model rule and distinguishes itself as a hospitable environment for incoming foreign investment and trade.
Background
In certain civil law jurisdictions, in-house counsel are not admitted to practice in the local courts. Consequently, they are not considered attorneys per se and their communications with their client are not protected by attorney-client privilege.
Before amendment, the ABA model rules conditioned the practice of law upon being “admitted to practice” before the courts of the jurisdiction, whether in the U.S. or in a foreign jurisdiction.
Most state jurisdictions either adopted the old ABA model rules or a similar rule.
Foreign companies coming to the U.S. from jurisdictions where in-house counsel were not admitted in the courts (e.g., France and Italy), had to be concerned that in-house counsel from their home jurisdictions may not be considered “attorneys” in the U.S. and their communications may not be privileged.
This situation created serious risks in the face of broad U.S. discovery rules.
Pro-business solution
In early 2014, the International Litigation Committee of the ABA Section of International Law began working with the French Corporate Counsel Association (AFJE) and the European Company Lawyers Association (ECLA) to study the problem and devise a solution. In less than two years the ABA Model Rules of Professional Conduct were amended.
On Nov. 9, 2017, the Florida Supreme Court adopted the ABA model rule and amended its Authorized House Counsel Rule (Chapter 17 of the Rules Regulating the Florida Bar) to allow foreign lawyers authorized to practice as a lawyer or counselor in a foreign jurisdiction to serve as authorized in-house counsel in Florida.
The rule is effective February 1, 2018.
The new rule solves the court admission problem by recognizing that Authorized House Counsel can be any person licensed in a U.S. jurisdiction “or admitted or otherwise authorized to practice as a lawyer or counselor of law or equivalent in a foreign jurisdiction ….”
Authorized House Counsel must be employed exclusively by a business organization in Florida, and must either reside in Florida or relocate to Florida within six months of application for certification as Authorized House Counsel.
The rule also sets forth:
- the certification process and requirements;
- procedures for discipline; and
- the types of legal representation permitted.
Authorized House Counsel can only provide legal advice to the business organization that employs him or her, and only regarding the business of the organization. Counsel may negotiate documents, represent the organization in its dealings with administrative agencies with jurisdiction over the organization, and provide certain pro bono services.
Authorized House Counsel may not provide legal services to individuals, including officers or directors of the organization, and may not appear in court unless specially admitted.
There are also certain disclosure requirements and rules governing the process of certification, its renewal and termination.
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If you have any questions about this alert, or would like more information on the topic, contact Gunster attorney Joseph L. Raia, or any member of Gunster's international law team.
