The Virginia State Bar has reversed itself on whether the in-house lawyer for Richmond’s public housing authority can be licensed or certified under the corporate attorney registration rule.
The VSB at first granted Michelle W. Waller a provisional corporate counsel certificate, then revoked it two days later. The bar said that a lawyer for a government entity cannot use the corporate counsel rule.
The situation highlights issues raised more than 10 years ago when in-house corporate lawyers were not considered to be practicing law. The view on that issue changed in 2003 when the Supreme Court of Virginia enacted a rule providing for limited admission and registration of corporate counsel.
The Richmond Redevelopment and Housing Authority hired Waller, an Ohio lawyer, in 2012 as the agency’s general counsel. She was introduced as a new staff member to the commissioners of the housing authority at a Sept. 18 meeting, according to the meeting minutes.
Waller is listed as an active member of the Ohio bar with an address in Solon, Ohio, according to that state’s online records.
Waller this month sought a Virginia corporate counsel certificate which would have provided authority to practice as in-house counsel for a private business. The request for a certificate may have been prompted by inquiries from Richmond television station WWBT, which first reported on Waller’s status on March 21.
A provisional corporate counsel certificate was issued to Waller on March 19, but was rescinded two days later, according to an official with the VSB. The certificate was rescinded because officials determined the corporate counsel certificate process was not available for employees of a government entity, according to Gale M. Cartwright at the VSB.
“At this time, she is not eligible to practice law,” Cartwright said.
The duties of general counsel for a public housing authority would be considered the practice of law, according to VSB Ethics Counsel James M. McCauley.
While declining to comment specifically on Waller’s situation, McCauley said the rules today are based on the assumption that in-house lawyers, whether for government agencies or private business, are engaged in law practice.
That view marks a break from prior doctrine, McCauley said. Under a 1994 Virginia Unauthorized Practice of Law opinion, in-house lawyers who provided legal advice to their employers and prepared legal documents were not practicing law and were not required to be members of the bar.
“We were in an era where we treated in-house lawyers as pretty much any other employee of a company,” McCauley said.
Problems emerged under that doctrine, McCauley said. A judge ruled that there was no attorney-client protection for communications between an in-house lawyer and other company officials. Corporate attorneys complained they were perceived as “second-class lawyers,” McCauley said.
After lengthy study, competing reform proposals surfaced in 2002. The VSB proposed a corporate counsel certificate program, in which certified house counsel would pay bar dues, meet education requirements and be subject to bar discipline.
A group of major corporations with offices in Virginia, where lawyers worked on national and international issues, wanted a less rigorous option. The businesses backed a two-tiered plan allowing corporate counsel “registrants” to pay a smaller fee and agree to subject themselves to VSB disciplinary rules.
The Supreme Court of Virginia opted for the two-tier proposal.
The rule now allows for both corporate counsel certificates and corporate counsel “registrants.”
The new rule does not explicitly state that all in-house lawyers need bar cards.
The court’s definition of the practice of law, in Section I of Part Six of the Supreme Court Rules, still excludes a lawyer functioning as “a regular employee acting for his employer.”
The new rule, Part 1A, Rule 1A:5, added in 2003 to require licensure, certification or registration of corporate counsel, specifically excludes those employed as lawyers for government entities. There does not appear to be any rule specifically addressing in-house counsel for government entities.
McCauley said Rule 1A:5 effectively overrules the “regular employee” exception to the definition of law practice.
If a lawyer uses legal skill and knowledge to give legal advice and prepare legal documents based on Virginia law, the lawyer is considered to be practicing law, McCauley said.
Accordingly, a general counsel for a public housing authority must either become admitted on motion or take the Virginia bar exam, McCauley said.
As of press time, officials at the RRHA had not responded to a request to for its position on Waller’s status.
Earlier, the agency released a statement to WWBT saying Waller was hired to coordinate legal matters and translate those issues to senior management. She then assigns those matters to proper outside counsel to represent the authority in federal and state venues, the statement said.
“This has been the manner in which the Authority has conducted it legal affairs for the past 30 years,” the statement said.
Created by the Richmond city council in 1940, the RRHA provides real estate development, rental housing assistance and property management of public housing communities for low and moderate income families.