The client alleged that the in-house lawyer and the lawyers corporate

employer were substantially involved in the wrongful death cases by

engaging in the following conduct constituting the unauthorized
practice of law:

providing legal advice, strategy and services to the third-party

client in pending litigation where the corporate employer was
not a party;
hiring, directing, managing, controlling and supervising Florida
lawyers defending the third-party client where the corporate
employer was not a party to the litigation; and
preparing pleadings, discovery responses and other legal
documents, making strategic defense strategy decisions on
behalf of a third-party client, and construing and interpreting
the legal effect of Florida law on behalf of the third-party
client.

The Florida Supreme Court dealt with the applicability of a proposed

Florida Bar Advisory Opinion that analyzed whether a non-lawyer
company or its in-house counsel (who is not licensed in Florida)
engages in the unauthorized practice of law in Florida when the nonlawyer company and its in-house counsel control, direct and manage
litigation in Florida on behalf of the non-lawyer companys third-party
customers where such control, direction and management is directed
to a member for the Florida Bar who is representing the customer in
the litigation. The Florida opinion concluded that while generally such
conduct is not the unlicensed practice of law, there are circumstances
where the opposite may be true, and the activity of the non-lawyer
company or its in-house counsel could constitute unlicensed practice.
The opinion cautioned that, the answer would be dependent on the
level of involvement of the Florida lawyer versus the level of
involvement of the nonlawyer. Id. at 1276. Ultimately, however, the
Supreme Court of Florida disapproved of the Florida Bar Advisory
Opinion for failing to properly address the specific conduct at issue in
the case.
Practically speaking, when in-house counsel and their corporate
employer become involved in litigation proceedings for the corporation
or on behalf of a client or customer in a jurisdiction where in-house
counsel is not licensed but where outside counsel (who is admitted
there) is hired, it is vitally important to consider the actual role, specific
activities, and level of participation, involvement and control that inhouse counsel and their corporate employer will have in the matter to
avoid any concerns regarding the unauthorized practice of law.
Beyond that, if they venture across state lines, they should be aware
that each state may have different requirements when it comes to
protecting its borders from unauthorized practice. Moreover, most

states may have a complex matrix of ethics rules, statutes and court
rules that bar crossing state lines without a license. Further, the
consequences could be dire not only for in-house counsel but also for
the lawyers corporate employer. Penalties for in-house counsel could
range from professional discipline, sanctions by a court, disqualification
from representation, and reputational injury, whereas for the corporate
employer, the consequences could include criminal or civil penalties,
court sanctions, fines, and loss of attorney-client privilege.
In-house counsel engaged in cross-border litigations for their corporate
employer need to be vigilant in drawing a very careful line between
permitted and prohibited litigation activities to avoid endangering their
license and exposing their corporate employer to liability.
***
Devika Kewalramani is a partner at Moses & Singer LLP and co-chair of
its Legal Ethics & Law Firm Practice. Ms. Kewalramani focuses her
practice on legal ethics, risk management, compliance, loss prevention
and professional responsibility. She serves as the chair of the
Committee on Professional Discipline of the New York City Bar
Association.