Can a D.C. law firm that has a nonlawyer partner practice law in Virginia through a licensed Virginia lawyer?

Plain-English summary

The inquiry described a law firm formed under the District of Columbia rules, which permit a partnership between a lawyer and a nonlawyer for the practice of law. The nonlawyer would agree in writing to be bound by the D.C. rules, would render no legal services, would have no signature authority over client trust funds, and would be identified on the letterhead as an "administrator," not held out as a lawyer or named in the firm name. The committee was asked whether such a firm could practice law in Virginia (or for Virginia clients) through a licensed Virginia bar member, and whether the answer changed if the nonlawyer was not a named partner or was barred by written agreement from sharing in the profits of the firm's Virginia legal work.

The controlling rules were DR 1-102(B) (a Virginia-admitted lawyer is subject to Virginia's rules even when practicing elsewhere, unless the foreign jurisdiction's rules permit the activity) and DR 3-103(A) (no partnership with a nonlawyer if any of the partnership's activities consist of the practice of law). The committee read DR 1-102(B) as a choice-of-law provision under which the more permissive D.C. rule would control conduct in D.C., but not Virginia practice.

The committee concluded that DR 1-102(B) did not bar the D.C. firm from conducting activities in D.C. benefitting Virginia clients through a Virginia bar member, but did bar the practice of law in Virginia by a firm that includes a nonlawyer partner. A lawyer licensed in both D.C. and Virginia could practice through a nonlawyer-partner partnership in D.C. without Virginia discipline, and could practice in Virginia so long as no part of the Virginia practice was conducted through a firm with a nonlawyer partner. The committee held the D.C. firm could not practice law in Virginia through a Virginia bar member while the nonlawyer was a partner (citing ABA Formal Op. 91-360), and that the two variations (the nonlawyer not being a named partner, or being precluded from sharing Virginia profits) were immaterial to that conclusion.

Currency note

This opinion was issued in 1994, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000; the Supreme Court of Virginia later approved the opinion as part of a compilation on November 2, 2016. The choice-of-law analysis has since changed: as the opinion's committee notes record, the former DR 1-102(B) approach was replaced by Rule 8.5(b), under which a dual-licensed lawyer is generally governed by the rules of the jurisdiction where the lawyer principally practices, or, where the conduct's "predominant effect" is in another jurisdiction of licensure, by that jurisdiction's rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a firm with a nonlawyer partner practice law in Virginia through a Virginia-licensed lawyer?

A: Under this 1994 opinion, no. The committee concluded that a firm including a nonlawyer partner may not practice law in Virginia through a Virginia bar member while the nonlawyer remains a partner.

Q: Did it matter that the firm was validly formed under D.C. rules allowing nonlawyer partners?

A: For D.C. practice, no. The committee held a dual-licensed lawyer could practice through a nonlawyer-partner firm in D.C. without Virginia discipline, but the permissive D.C. rule did not authorize the firm to practice law in Virginia.

Q: Would it help to leave the nonlawyer off the firm name or out of Virginia profits?

A: No. The committee found both variations immaterial: neither omitting the nonlawyer from the firm name nor barring the nonlawyer from sharing Virginia profits changed the conclusion.

Background and rules framework

The opinion interpreted former Virginia DR 1-102(B) (a choice-of-law provision for lawyers practicing across jurisdictions) and DR 3-103(A) (no nonlawyer partnership for the practice of law), with EC 3-4 and EC 3-8. The nonlawyer-partnership bar is now carried forward in ABA Model Rule 5.4, and the choice-of-law question is now governed by Model Rule 8.5(b), which (as the committee notes record) takes a different approach than former DR 1-102(B).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-102(B); DR 3-103(A); EC 3-4; EC 3-8 (Code of Professional Responsibility)
• ABA Model Rule 5.4 (professional independence; nonlawyer partnership); Model Rule 8.5(b) (choice of law)

Other opinions cited:

• ABA Formal Op. 91-360 (1991): a firm with a nonlawyer partner cannot practice in a jurisdiction that prohibits nonlawyer partnerships.

See also

• VA LEO 1843: Patent Lawyer With a Non-Lawyer Agent
• VA LEO 1856: Foreign Lawyer Practice in Virginia
• VA LEO 1764: Fee Sharing With a Finance Company

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1584.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Supreme Court Approved
November 2, 2016
Committee Opinion
April 11, 1994

LEGAL ETHICS OPINION 1584

PARTNERSHIP WITH A NONLAWYER –
MULTIJURISDICTIONAL LAW FIRM
WITH NONLAWYER PARTNER
PRACTICING IN VIRGINIA THROUGH
LICENSED VIRGINIA BAR MEMBER.

You have presented a hypothetical situation in which an attorney contemplates forming
a partnership with a nonlawyer, for the practice of law, that complies fully with all
aspects of the District of Columbia ["D.C."] Rules of Professional Conduct which permit
D.C. attorneys to engage in the practice of law with non-lawyer partners. You state that
the partnership will be formed solely for the practice of law. You also state that the
nonlawyer will agree in writing to be bound by the D.C. Rules but that the nonlawyer will
not be rendering any legal services, will have no signature authority over any client trust
monies, and his status as a nonlawyer will be stated on the firm letterhead. Finally, you
state that the firm name will not include the nonlawyer, who is never held out as a
lawyer, and all correspondence identifying the non-lawyer will include his title as
"administrator".
You have asked the committee to opine whether, under the facts of the inquiry, a D.C.
law firm in which a nonlawyer is a partner may engage in the practice of law in Virginia
and/or for Virginia-based clients (through a licensed Virginia Bar member) if the
nonlawyer partner is a named partner in the firm. Additionally, you ask whether the
propriety would be impacted if the nonlawyer partner is not a named partner in the firm.
Finally, you ask whether the propriety would be impacted if the nonlawyer partner is
precluded by written agreement from sharing in the profits of any of the firm's legal
services performed in the Commonwealth of Virginia.
The appropriate and controlling Disciplinary Rules related to your inquiry are DR:1102(B) which provides that a lawyer admitted to practice in this jurisdiction is subject to
these Disciplinary Rules although engaged in practice elsewhere, unless disciplinary rules
of the foreign jurisdiction permit the activity; and DR:3-103(A) which states that a
lawyer shall not form a partnership with a nonlawyer if any of the activities of the
partnership consist of the practice of law.
Disciplinary Rule 3-103(A) provides the general prohibition against forming a
partnership with a nonlawyer. Here, however, there is a conflict of rules between D.C.
and Virginia with D.C.'s Rules permitting a partnership with a nonlawyer, while
Virginia's Rules do not. Additionally, DR:1-102(B) acts as a conflicts of rules provision
providing, as noted above, that the more permissive D.C. Rule would control the
circumstances you describe.
Thus, the committee interprets DR:1-102(B) as not banning the D.C. law firm from
conducting activities in D.C. benefitting Virginia clients (through a licensed Virginia Bar
member), but only as banning the practice of law in Virginia by a law firm which

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Supreme Court Approved
November 2, 2016
Committee Opinion
April 11, 1994

includes a non-lawyer partner. The committee is of the view that a lawyer licensed in
both D.C. and Virginia could practice law through a partnership which includes a
nonlawyer partner in the District of Columbia without being subject to discipline by
Virginia. Also, the same lawyer could practice law in Virginia without being subject to
discipline under DR:3-103(A), so long as no part of that lawyer's practice in Virginia is
conducted through a firm with a nonlawyer partner. The committee opines that the D.C.
firm, which includes a nonlawyer as a partner, may not engage in the practice of law in
Virginia (through a licensed Virginia Bar member), if the nonlawyer partner is a partner
in the firm. See ABA Formal Opinion No. 91-360 (7/11/91). See also EC:3-4 and EC:3-8.
The committee is of the view that both variations on your inquiry, i.e., (1) the
nonlawyer partner not being a named partner, and (2) the nonlawyer partner being
precluded by written agreement from sharing in the profits of any of the firm's legal
services performed in the Commonwealth of Virginia, are immaterial to the conclusions
reached.
Supreme Court Approved
November 2, 2016
Committee Opinion
April 11, 1994
Legal Ethics Committee Notes. – Dr 1-102(B) provided that the Virginia Disciplinary
Rules governed a lawyer admitted in Virginia although engaged in practice elsewhere,
unless a foreign jurisdiction’s Disciplinary Rules permitted the activity in question. In
contrast, Rule 8.5(b) provides that a lawyer licensed to practice in Virginia and in another
jurisdiction is governed by the rules of the jurisdiction in which the lawyer principally
practices, except that if the lawyer’s conduct in question clearly has its “predominant
effect” in another jurisdiction in which the lawyer is licensed, the rules of the
“predominant effect” jurisdiction govern.

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