Supreme Court of Delaware.
September 13, 2005.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, and RIDGELY, Justices (constituting the Court en Banc).
ORDER
This 13th day of Sept., 2005, IT IS HEREBY ORDERED that:
1) Rule 55.1 is promulgated as follows:
Rule 55.1 Limited permission to practice of in-house counsel.
(a) A lawyer admitted to the practice of law in a jurisdiction other than this state, of the United States, may apply for a Delaware Certificate of Limited Practice, which will allow the lawyer to practice law as in-house counsel in this state. In-house counsel who is eligible for this certificate must be employed in the state as a lawyer working exclusively for a for-profit or a non-profit corporation, association, or other organizational entity, which can include its subsidiaries and affiliates, the business of which is lawful and is other than the practice of law or the provision of legal services (hereinafter termed “Employer”). Such lawyers may make no court appearances or engage in other activities for which Supreme Court Rules 71 and 72 pro hac vice admission is required except as permitted by Supreme Court Rule 57. The Delaware Certificate of Limited Practice does not authorize the provision of legal services to the Employer’s officers or employees in their personal capacities.
(1) Lawyers admitted to practice in a jurisdiction outside of the United States may apply individually to the Supreme Court for a Delaware Certificate of Limited Practice, pursuant to the provisions of this Rule.
(2) In-house counsel currently practicing law on behalf of an Employer in this state, but without a certificate, will be granted a period of one (1) year from the effective date of this Rule to file for a practice certificate without penalty, so long as all other requirements of this Rule are met. Current in-house lawyers who have been inactive members of another bar for five (5) years or more, and are not otherwise active members of any other bar, may continue in that status but must comply with all provisions and obligations of this Rule and with the continuing legal education requirements of an active member of the Delaware Bar.
(b) An applicant for a Delaware Limited Practice Certificate shall:
(1) File under oath the Supreme Court’s form application for a Delaware Limited Practice Certificate.
(2) Furnish a certificate signed by the licensing authority in each jurisdiction in which the applicant is admitted to practice law, stating that the applicant is licensed to practice law and is, with the exception provided in Section (a)(2) above, an active member in good standing at the bar of at least one of those jurisdictions.
(3) File affidavit on a form furnished by the Supreme Court, from an officer, principal, or partner of the applicant’s Employer who attests:
(A) that the applicant is employed as a lawyer to provide legal services exclusively to the Employer, which can include its subsidiaries and affiliates and, with the exception provided in Section (a) (2) above, certifies that the applicant will remain an active member in good standing of another state or national bar during the entire course of his or her employment.
(B) that the nature of the applicant’s employment conforms to the requirements of this Rule; and
(C) that the Employer shall notify the Supreme Court immediately upon the termination of the applicant’s employment.
(4) Certify that the applicant has read and is familiar with the Delaware Lawyers’ Rules of Professional Conduct.
(5) Pay an application fee in the amount of $100 dollars.
(c) During the period in which an application for a Delaware Certificate of Limited Practice is pending with the Supreme Court, the applicant may be employed in the state as an in-house counsel on a provisional basis by an Employer whose affidavit is filed pursuant to section (b) (3) above.
(d) Upon finding that the applicant has complied with the requirements of section (b) above, the Supreme Court shall notify the applicant that he or she is eligible to be issued a Delaware Certificate of Limited Practice. After the applicant has taken and subscribed to the oath required of attorneys at law in this state, the applicant shall be issued a certificate entitling the applicant to practice law in the state as provided in this Rule.
(e) The privileges and responsibilities of practice by in-house counsel operating under a valid certificate in this state shall include all privileges and responsibilities otherwise applicable to other Members of the Delaware Bar. Accordingly, lawyers registered under this Rule shall be deemed to be practicing law in Delaware and are thus subject to:
(1) all rules governing the practice of law in Delaware. Jurisdiction of the Supreme Court shall continue whether or not the lawyer retains the Delaware Certificate of Limited Practice and irrespective of the lawyer’s continued presence in the state; and
(2) the fulfillment of Supreme Court’s requirements for continuing legal education, if applicable in accordance with section (a) (2) above, or the requirements of the other state or states or jurisdictions in which the in-house or federal agency lawyer is admitted to practice law.
(f) Each person issued a Delaware Certificate of Limited Practice shall promptly report to the Supreme Court any change in employment, any change in bar membership status in any jurisdiction of the United States where the applicant has been admitted to the practice of law, or the imposition of any disciplinary sanction in such jurisdiction by any federal court, state court or agency before which the applicant has been admitted to practice, or in any state in which the attorney has rendered legal services while temporarily authorized under Rule 5.5. This provision shall apply also to any certificated lawyer admitted to practice in a jurisdiction outside of the United States.
(g) While the practice of a lawyer registered under this Rule is limited to practice for the Employer furnishing the affidavit required by this Rule, a lawyer registered under this Rule may participate in the provision of any and all legal services pro bono publico in Delaware offered under the auspices of organized legal aid societies or state/local bar association projects, or provided under the supervision of a Member of the Delaware Bar who is also working on the pro bono representation.
(h) If there is a change in circumstances and an attorney admitted pursuant to this Rule becomes ineligible for limited practice, in accordance with its provisions, both the attorney and the attorney’s employer shall immediately notify the Clerk of the Delaware Supreme Court of that change in circumstance.
(i) The applicant’s authority to practice law as granted under this Rule shall be automatically suspended when:
(1) employment by the Employer furnishing the affidavit required by this Rule is terminated;
(2) the lawyer fails to comply with any provision of this Rule; or
(3) when the lawyer is suspended or disbarred for disciplinary reasons in any jurisdiction of the United States or by any federal court or agency or by any foreign nation before which the lawyer has been admitted to practice.
Any lawyer whose authority to practice is suspended pursuant to section (i) (1) above shall be reinstated upon satisfactory evidence that the lawyer has a new Employer who qualifies under section (a) above. A notarized letter from the lawyer, accompanied by an affidavit furnished by the attorney’s new Employer, shall suffice for reinstatement, provided that the lawyer attests that there are no other changes to the lawyer’s eligibility as required by this Rule.
Any lawyer whose authority to practice is suspended under sections (i) (2) or (i) (3) above may be considered for reinstatement in accordance with Rule 22 of the Delaware Lawyers’ Rules of Disciplinary procedure.
(j) The Supreme Court may adopt such additional regulations as needed to implement the requirements of this Rule.
2) The effective date of this Rule is December 1, 2005.
ORDER
This 30th day of November, 2005, IT IS HEREBY ORDERED that the annexed Rule 55.1 Forms 1 through 5 are adopted by the Court effective December 1, 2005.
DELAWARE SUPREME COURT RULE 55.1 REGISTRATION FOR LIMITED PRACTICE OF IN-HOUSE LAWYERS GUIDELINES AND FORMSCompliance with Delaware Supreme Court Rule 55.1 is a personaland professional responsibility and a continuing condition ofemployment as an in-house legal counsel in the State of Delaware.There is a one year grace period beginning December 1, 2005 andending November 30, 2006 to achieve compliance.
REQUIREMENTS
Briefly, Rule 55.1 requires the following:
• Lawyers admitted to practice in U.S. jurisdictions other than in Delaware who wish to continue legal work here as in-house counsel must apply for a Delaware Certificate of Limited Practice. Employees of a Delaware company who happen to be lawyers and members of a bar, but are not employed in any legal counseling capacity, are not required to obtain a Certificate unless the nature of their employment changes to that of giving legal counsel. Lawyers of a Delaware company who are not currently working or residing in the State of Delaware [i.e. overseas transferees] are not required to obtain a certificate, unless and until they return to employment as legal counsel in Delaware.
• Qualifications for the Certificate include being employed exclusively by a corporation [or one of its owned entities including subsidiaries and affiliates] whose business is other than the practice of law or the provision of legal services.
• Foreign lawyers [those admitted to practice in a jurisdiction outside the U.S] can apply individually to the Supreme Court for the same Certificate.
• Current in-house lawyers who have been inactive members of a bar, other than Delaware, for 5 years or more are “grandfathered” and may continue in that inactive status so long as they comply with Rule 55.1 and with Delaware Supreme Court CLE requirements. Lawyers who have been inactive in their home bar for less than 5 years must regain active status through whatever procedures are required by that bar.
• Lawyers who are active members of another bar only have to follow the CLE requirements of that bar, if any, and not those of Delaware.
APPLICANT’S RESPONSIBILITIES
• A Delaware Supreme Court Application Form must be filed one time under oath by each Applicant. [FORM 1] • Applicant must furnish certificates signed by the licensing authority of each state bar in which the Applicant is admitted to practice, whether active or inactive, indicating membership in good standing and active or inactive status. Applicants must furnish proof of active membership in good standing in at least one of those jurisdictions. [FORM 2] • Applicant must certify that he/she has read and is familiar with the Delaware Lawyers’ Rules of Professional Conduct. These may be found under “Office of the Disciplinary Counsel” of the “Delaware Supreme Court” website [http://courts.delaware.gov/odc]. [FORM 1]
• Applicant must pay an application fee of $100.
• Applicant must report to the Delaware Supreme Court any change in employment status, change in bar status, or the imposition of any bar disciplinary measures. [FORM 3]
EMPLOYER’S RESPONSIBILITIES
• Employer must file an affidavit with the Delaware Supreme Court attesting that: (1) Applicant is employed as a lawyer and that the nature of Applicant’s employment conforms to the requirements of Rule 55.1; (2) Applicant works exclusively for the employer [or one of its subsidiaries or affiliates]; (3) Applicant will remain an active member in good standing of another bar during the entire course of his/her employment. [FORM 4] • Employer must notify the Supreme Court immediately if the Applicant’s employment is terminated or if any required conditions change. [FORM 5]
REGISTRANTS’ STATUS
• Once the Supreme Court approves the Application, the Applicant/Registrant will take and subscribe to the oath required of Delaware lawyers.
• The Registrant will be issued a Delaware Certificate of Limited Practice entitling him/her to practice law in Delaware in accordance with this Rule.
• All privileges and responsibilities otherwise applicable to other members of the Delaware Bar apply to Registrants.
• Registrants are deemed to be practicing law in Delaware and are thus subject to the jurisdiction of the Delaware Supreme Court.
• Registrants must comply with Supreme Court Rule 69 Categories of Bar membership and annual registration, and, for the purposes of this Rule, are to consider themselves in the “active” category of membership.
• Registrants may engage in pro bono publico
activities in Delaware, including court appearances for that purpose.
GROUNDS FOR REVOCATION OF STATUS
The Registrant’s Certificate of Limited Practice will be revoked automatically when:
• Registrant’s employment is terminated;
• Registrant fails to comply with any provision of this Rule; or
• Registrant is suspended or disbarred for disciplinary reasons in the bar, or any of the bars, to which he/she belongs, and reinstatement of the Delaware Certificate has not been granted by the Delaware Supreme Court.
FORM 1 Application IN THE SUPREME COURT OF THE STATE OF DELAWARE APPLICATION FOR A CERTIFICATE OF LIMITED PRACTICE
I, [Full Name] do hereby apply to the Supreme Court of the State of Delaware for a Certificate of Limited Practice in accordance with Supreme Court Rule 55.1.
I certify that I am employed exclusively as legal counsel for the [Full Name of Company or Business Entity] whose business is other than the practice of law or the provision of legal services.
I certify that I am a member in good standing of the following bars: [List all bar memberships and membership identification numbers, if any], and that I am an active member in good standing of the Bar of the State/Country of [List State/Country/Jurisdiction].
I certify that I have read, and am familiar with, the Delaware Lawyers’ Rules of Professional Conduct
DATED: ________________ _________________________ APPLICANT
Sworn to and subscribed
Before me this _______
Day of __________, 20__.
________________________ Notary Public
FORM 2 Certification of Membership By State Bar Licensing Authority
[This is a suggested format. Anything comparable will be accepted.] PRINTED LETTERHEAD STATE BAR LICENSING AUTHORITY
To Whom It May Concern:
Very truly yours,
[Signature] [Printed Name and Address of Clerk or Licensing Authority Recorder] FORM 3 Report of Change of Status IN THE SUPREME COURT OF THE STATE OF DELAWARE REPORT OF CHANGE OF STATUS UNDER RULE 55.1
Registrant holding a Delaware Certificate of Limited Practice hereby gives notice to the Court that
Registrant is aware and acknowledges that his/her Certificate of Limited Practice granted by this Court on [Date] is hereby revoked and ended as of the date hereinabove written.
Signature of Registrant
Dated: __________ ___________________________________
Printed Name of Registrant Delaware Bar Identification Number [Address] [Telephone Number] [Electronic Mail Address]
FORM 4 Employer Affidavit IN THE SUPREME COURT OF THE STATE OF DELAWARE RULE 55.1 EMPLOYER AFFIDAVIT
STATE OF ______________:
COUNTY OF _____________:
BE IT REMEMBERED, that on this _____ day of __________, A.D., 20__, personally appeared before me, [FULL NAME OF CORPORATE OFFICER], who being duly sworn according to law, did depose and say:
1. I am the [TITLE OF CORPORATE OFFICER] of the [FULL NAME OF COMPANY], a corporation organized and existing under the laws of the State of [JURISDICTION], having its principal place of business in Delaware at [DELAWARE ADDRESS OF COMPANY].
2. I certify that [NAME OF APPLICANT], hereinafter Applicant, is employed as a lawyer by [NAME OF COMPANY] and that the nature of the Applicant’s employment conforms to the requirements of Rule 55.1.
3. I certify that Applicant works exclusively for [NAME OF COMPANY] or one or more of its subsidiaries or affiliates whose business is other than the practice of law or the provision of legal services.
4. I certify that Applicant will remain an active member in good standing of the [BAR/LAW SOCIETY] of the [STATE/COMMONWEALTH/JURISDICTION] of [NAME] during the entire course of his/her employment.
5. I certify that I, or my successors, will notify the Supreme Court immediately if Applicant’s employment is terminated, or if any conditions required by Rule 55.1 change.
signature of officer
________________________________________ Printed name of officer Sworn to and subscribed before me this ___ day of ______, 20__ _______________________ Notary Public
FORM 5 Employer Report of Change of Status IN THE SUPREME COURT OF THE STATE OF DELAWARE EMPLOYER REPORT OF CHANGE OF REGISTRANT STATUS UNDER RULE 55.1
Employer of Registrant holding a Delaware Certificate of Limited Practice hereby gives notice to the Court that
Signature of Corporate Officer
Dated: _____ __________________________________ Name and Title
[Address] [Telephone Number] [Electronic Mail Address]