TBA Law Blog

TBA Law Blog

TBA Files Comment on BPR Proposed Formal Opinion

Posted by: Berkley Schwarz on Nov 15, 2022
News Type: Legal News

The TBA on Tuesday filed a comment with the Board of Professional Responsibility (BPR) in response to its proposed Formal Opinion 2022-F-168, which addresses whether lawyers who do not reside in Tennessee, but work remotely full-time as in-house counsel for an organization with its principal place of business in Tennessee and are not licensed in Tennessee or registered as in-house counsel in Tennessee are engaging in the unauthorized practice of law. The TBA believes the guidance provided by the proposed opinion will be helpful to in-house counsel who are evaluating whether they should register with the Board of Law Examiners under Tennessee Supreme Court Rule 7, § 10.01. However, the proposed opinion makes several references to in-house counsel licensed in other states “practicing Tennessee law” or engaging in “the practice of Tennessee law” while they are not physically present in Tennessee. The proposed opinion also repeatedly relies on the phrase “the practice of Tennessee law” as a description of a lawyer’s activity to be evaluated under Rule 5.5. This phrase is not used in Rule 5.5, nor is it used in the primary statutory law governing UPL in Tennessee, Tenn. Code Ann. §§ 23-3-101 and 23-3-103. There are several likely reasons for this absence. While the TBA commends the BPR for its efforts to address an important issue through the opinion, the TBA recommends that the opinion be revised in several important respects. See the filed comment and suggested additions and deletions. 

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