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USA - West Virginia International Trade in Legal Services

United States of America - West Virginia International Trade in Legal Services

HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector

ANNOTATED CODE OF WEST VIRGINIA, CHAPTER 51. COURTS AND THEIR OFFICERS

Under what title do lawyers practise?

Attorney at law

How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?

An individual must be at least 18 years old; have an A.B., B.S., or its equivalent; have an LLB or JD from an approved law school; satisfy character and fitness to practice requirements; have passed the Multistate Professional Responsibility Examination; and either have passed the bar exam or qualified for admission without examination.

Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits

This only automatically entitles the holder to practise in West Virginia. The right to practise on a temporary basis in another state or to appear pro hac vice in another state depends on the explicit permission of that state.

Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNOTATED CODE OF WEST VIRGINIA, CHAPTER 51. COURTS AND THEIR OFFICERS, ARTICLE 1. SUPREME COURT OF APPEALS
WV ST § 51-1-4a
§ 51-1-4a Rules governing practice of law; creation of West Virginia State bar; providing its powers, and fees for administration.
The supreme court of appeals of West Virginia shall, from time to time, prescribe, adopt, promulgate, and amend rules:
(a) Defining the practice of law.
Brammer v. Taylor, 338 S.E.2d 207 (W.Va. 1985)
This Court has promulgated a definition of the practice of law, pursuant to our ""power to promulgate rules ... for all of the courts of the State relating to ... practice ...,"" W.Va. Const. art. VIII, § 3, and pursuant to the express provision of W.Va.Code, 51-1-4a(a) [1945] to promulgate rules defining the practice of law. This definition, [FN7] emphasizing the need for protection of the public from legal advice and representation from and by persons who are ""unqualified and undisciplined,"" is to be read in pari materia with W.Va.Code, 30-2-4 [1931] and W.Va.Code, 30-2-5 [1972], which impose misdemeanor criminal penalties for the unauthorized practice of law by a natural person or by a corporation or association.
FN7. Adopted in 1947 and last amended in 1961, our ""Definition of the Practice of Law"" is as follows (after a preamble reciting the importance of licensing and regulation of persons performing legal services):
“In general, one is deemed to be practicing law whenever he or it furnishes to another advice or service under circumstances which imply the possession of [or] use of legal knowledge and skill. More specifically but without purporting to formulate a precise and completely comprehensive definition of the practice of law or to prescribe limits to the scope of that activity, one is deemed to be practicing law whenever (1) one undertakes, with or without compensation and whether or not in connection with another activity, to advise another in any matter involving the application of legal principles to facts, purposes or desires; (2) one undertakes, with or without compensation and whether or not in connection with another activity, to prepare for another legal instruments of any character; or (3) one undertakes, with or without compensation and whether or not in connection with another activity, to represent the interest of another before any judicial tribunal or officer, or to represent the interest of another before any executive or administrative tribunal, agency or officer otherwise than in the presentation of facts, figures or factual conclusions as distinguished from legal conclusions in respect to such facts and figures”.
Vol. 1A, W.Va.Code, at 267-68 (1982 Repl.Vol.).
WV ST § 30-2-4 - Practice without license or oath; penalty; qualification after institution of suits.
It shall be unlawful for any natural person to practice or appear as an attorney-at-law for another in a court of record in this state, or to make it a business to solicit employment for an attorney, or to furnish an attorney or counsel to render legal services, or to hold himself out to the public as being entitled to practice law, or in any other manner to assume, use, or advertise the title of lawyer, or attorney and counsellor-at-law, or counsellor, or attorney and counsellor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law, or in any manner to advertise that he, either alone or together with other persons, has, owns, conducts or maintains a law office, without first having been duly and regularly licensed and admitted to practice law in a court of record of this state, and without having subscribed and taken the oath required by the next preceding section [§30-2-3]. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars; but this penalty shall not be incurred by any attorney who institutes suits in the circuit courts after obtaining a license, if he shall qualify at the first term thereafter of a circuit court of any county of the circuit in which he resides.
WV ST § 30-2-5 - Practice by corporations or voluntary associations; penalties; limitations of section.
Except as provided by section five-a [§ 30-2-5a] of this article, it shall be unlawful for any corporation or voluntary association to practice or appear as an attorney-at-law for any person in any court of this state or before any judicial body, or to hold itself out to the public as being entitled to practice law, or to render or furnish legal services or advice, or to furnish an attorney or counsel to render legal services of any kind in actions or proceedings of any nature, or in any other manner to assume to be entitled to practice law, or assume, use or advertise the title of lawyer in such manner as to convey the impression that it is entitled to practice law or to furnish legal advice, services or counsel, or to advertise that, either alone or together with or by or through any person, whether a duly and regularly admitted attorney-at-law or not, it has, owns, conducts or maintains a law office for the practice of law, or for furnishing legal advice, services or counsel. It shall be unlawful further for any corporation or voluntary association to solicit, itself or by or through its officers, agents or employees, any claim or demand for the purpose of bringing an action thereon, or of settling the estate of any insolvent debtor, or of representing as attorney-at-law, or of furnishing legal advice, services or counsel to, a person sued or about to be sued in any action or proceeding, or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceeding which has or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in the pursuit of any civil or criminal remedy. Any corporation or voluntary association violating the provisions of this section, or any officer, trustee, director, agent or employee of such corporation or voluntary association who directly or indirectly engages in any of the acts herein prohibited, or assists such corporation or voluntary association to do such prohibited acts, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars. The fact that any such officer, trustee, director, agent or employee shall be a duly and regularly admitted attorney-at-law shall not be held to permit or allow any such corporation or voluntary association to do the acts prohibited herein, nor shall such fact be a defense upon the trial of any of the persons mentioned herein for a violation of the provisions of this section.
This section shall not apply to a partnership composed of licensed attorneys, or to a corporation or voluntary association lawfully engaged in examining and insuring the titles to real property, nor shall it prohibit a corporation or voluntary association from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party, nor shall it apply to organizations organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy.

Do you need to hold local nationality to be eligible to practise law?

No.  There is no requirement of U.S. citizenship for licensure in West Virginia, but additional requirements apply to those who receive their legal education in a foreign country.

What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)

A lawyer may practise as a sole practitioner, in a general partnership or as a member of a law firm that is organized as a limited liability company or registered limited liability partnership (collectively, “limited liability organizations”) solely to render professional legal services under the laws of West Virginia, including, but not limited to, the Uniform Limited Liability Act, W. Va. Code §§ 31B-1-101, et seq., and the Uniform Partnership Act, W. Va. Code §§ 47B-1-1, et seq., and may practice in or as such a limited liability organization, provided that such lawyer is otherwise licensed to practice in West Virginia and such law firm is registered pursuant to rules promulgated by The West Virginia State Bar.   A law firm organized as a limited liability organization under the laws of any other state or jurisdiction of the United States solely for the purpose of rendering professional legal services and authorized to do business in West Virginia and which has at least one lawyer licensed to practice law in West Virginia may register in West Virginia as a limited liability organization under this rule by registering pursuant to rules promulgated by The West Virginia State Bar. Fee sharing with non-lawyers is prohibited.

What other ethical or regulatory requirements must a licensed lawyer comply with? 

The West Virginia code of professional conduct which is modelled on the ABA model code (see:http://www.wvodc.org/ropc.htm)

Do law firms need to receive a "license" (or permission/approval) to practice law?

Not from the Court but depending on its form, will need to comply with obligations under the Uniform Limited Liability Act, W. Va. Code §§ 31B-1-101, et seq., and the Uniform Partnership Act, W. Va. Code §§ 47B-1-1.

Which authority issues licences? Are there different authorities for individuals and firms? 

Licences are issued by the State Supreme Court

   

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?

Temporary practice by both foreign lawyers and lawyers from other US states is not permitted under West Virginia rule 5.5.

Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?

 

 

Foreign lawyers would not be able to obtain visas to practise law in West Virginia. It is possible that they may qualify under the USA's WTO commitments as "service salespersons" if they are "persons not based in the territory of the United States and receiving no remuneration from a source located within the United States, who are engaged in activities related to representing a services supplier for the purpose of negotiating for the sale of the services of that supplier where: a) such sales are not directly made to the general public and b) the salesperson is not engaged in supplying the service" Entry for persons named in this section is limited to a ninety-day period.

Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?

No - There is no FLC licensing regime in West Virginia

Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)

Not applicable

Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)

Not applicable

Are foreign lawyers permitted to undertake arbitration and mediation?

 

Are foreign lawyers allowed to appear in court under any circumstances?

 

 

West Virginia Rules for Admission to the Practice of Law, Rule 8.0. Admission pro hac vice.http://www.state.wv.us/wvsca/rules/rule8.htm
General rule. Whenever it shall appear that a person, who has not been lawfully licensed and admitted to the practice of the law in the State of West Virginia, has been duly licensed to be admitted to practice before a court of record of general jurisdiction in any other state or country or in the District of Columbia, and is in good standing as a member of the bar of such jurisdiction, he or she may appear in a particular action, suit, proceeding or other matter in any court of this State or before any judge, tribunal or body of this State upon full compliance with the requirements of this rule, if like courtesy or privilege is extended to members of the West Virginia State Bar in such other jurisdiction.
NB.Reciprocity and involvement of local counsel are required.

Can foreign lawyers requalify as local lawyers?

 

Rule 3.0(b)(4), West Virginia Supreme Court of Appeals Rules for Admission to the Practice of Law in West Virginia http://www.state.wv.us/wvsca/Bd%20of%20Law/lawprac.htm
Applicant may sit for examination if a law school graduate from a foreign country where the common law of England forms basis of jurisprudence, if educational requirements for admission in said country are substantially the same as in West Virginia and applicant is admitted in good standing there, and if applicant successfully completes 30 credit hours of basic courses at an ABA-approved law school.

FOREIGN LAW FIRMS

Can a foreign law firm obtain a licence to open an office?

No

Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)

Not applicable

Are there different types of foreign law firm 'licence'  (e.g. Joint Law Venture, stand alone foreign licence etc)

Not applicable

Is there a quota on the number of licences available?

Not applicable

Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have?

No

Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they? No
Are there restrictions on the corporate form a foreign law firm can take? Not applicable
Are there rules about the name a foreign law firm can take? Not applicable
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL Not applicable

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm?

Not applicable

May a domestic lawyer be employed by a foreign lawyer or law firm?

Not applicable

Can a domestic lawyer enter into partnership with a foreign lawyer?

Not applicable

Can a domestic lawyer or domestic law firm employ a foreign lawyer?

Not applicable

   

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links

 

Verified by

West Virginia Board of Law Examiners (February 2014)