Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Up until recently, in-house counsel at Connecticut companies could provide advice to their company without necessarily being admitted to practice law in Connecticut.  Well, I shouldn't say that they "could" but until new in-house counsel rules were passed last year, there was a next-to-nothing likelihood that in-house counsel were going to be prosecuted for unauthorized practice of law. After all, the rules were anything but clear.  However, after these new rules were passed in-house counsel had no excuse. And, as is often said, ignorance of the law is no excuse. 

Now, an important deadline occurs today, June 30th: the expiration of the safe-harbor provisions.

Who qualifies for a safe harbor?  The rules state that a counsel must:

1. be a member of the bar in good standing in another jurisdiction (state, DC, or US territory; foreign countries do NOT qualify);
2. be employed by an “organization” as defined in Section 2-15A or will be relocating to Connecticut within three months in furtherance of employment by such an “organization;”
3. agree to abide by the rules regulating members of the Connecticut bar;
4. agree to submit to the jurisdiction of the statewide grievance committee and the superior court;
5. have a law degree (JD or LLB) from a law school approved by the bar examining committee (all ABA-approved law schools and Southern New England Law School and Massachusetts School of Law are approved by the committee);
6. file an application for registration as an authorized house counsel with the bar examining committee together with the required forms, documents and the fee of $1,000.00.

If an in-house counsel meets all of the above criteria, then he or she won't be prosecuted for an unauthorized practice of law claim that occurred before January 1, 2008.  In other words, the state gave in-house counsel who practiced law before January 1, 2008 (without being licensed) a "get out of jail" card.  Those aren't given out all that frequently, so it's been a little surprising that more in-house counsel haven't taken full advantage of it. 

So, what's needed by the end of today? Well, the registration forms, documents AND the fee are due (not mailed) to the Bar Examining Committee (available here). 

It is a pretty big task. So, the obvious followup question is: What happens if you don't? Well, according to the Connecticut Law Tribune article today -- probably nothing, as least as of yet.  The state's budget woes leave the Statewide Grievance Committee and other related entities with insufficient resources to prosecute in-house counsel who aren't authorized to practice law. 

Of course, as with other types of violations of these types of rules, the biggest offenders are the ones that resources will likely be devoted to. So, in-house counsel can still consider submitting late forms and fees.  They may not get a "get out of jail" card, but they may place lower on a "wanted" listed than other offenders.

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With blue skies and warm weather here (finally!), it's easy to overlook some deadlines that are upcoming for employers in Connecticut.  One relates to those who have employees who have taken FMLA and the other relates to authorized house counsel at those companies. These deadlines won't affect everyone, but for those who are covered, it's important to stay in compliance.

In-House Counsel Registration

New rules that went into effect January 1, 2008 provide a safe-harbor for those attorneys that work in-house at companies, but who are not licensed to practice law in Connecticut.  I've summarized the requirements for the "Authorized House Counsel" rules in a post over the winter. 

But the safe-harbor period expires June 30, 2008. House counsel must register by then or they could face penalties if they are caught working at these companies without prior registration.   And according to the Law Tribune (registration required), only a few hundred attorneys have filed the necessary papers.

As of last week, 78 in-house counsel who paid and signed up were sworn in throughout Connecticut, said Kathleen B. Wood, administrative director of the Connecticut Bar Examining Committee. At the time, Wood's office had received 277 applications. She had expected the number to be in the thousands.

For employers, ensuring that their employees are properly licensed and in compliance with the law should be a top priority. With just a few weeks to go before the expiration of the safe-harbor period, employers (and their house counsel) can download the necessary paperwork directly from the Connecticut Bar Examining Committee website here.

FMLA Forms for Connecticut Employers

The Connecticut Department of Labor, which has oversight of employers and family medical leave act enforcement, has reminded employers of another deadline.  Specifically, for companies who as of October 1, 2006, employed in Connecticut 75 or more employees, the Department of Labor requires employers to submit a Family and Medical Leave Act (FMLA) Experience Report. The form can be filled out electronically here.  It must be submitted by June 20, 2008. 

What information is requested? Pretty basic information, actually: The Department requests the type of leave taken (birth/adoption, family illness, medical leave) and the number of leaves taken and the total weeks of leave taken by type. 

This requirement is actually based on the DOL's regulations. Specifically, Conn. Regs. Sec. 31-51qq-48 states that employers are required to complete forms that are necessary to assess the current experience of employers subject to the Act. 

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For years, there were lots of questions in Connecticut about whether attorneys who were not licensed to practice in Connecticut could work in-house (or directly) for Connecticut companies.  Some even ended up taking the bar exam again to ensure that they were complying with the rules.

New rules that go into effect January 1, 2008 resolve those questions and provide a safe-harbor for those attorneys that may not have complied with the rules in the past.    The Connecticut Bar Examining Committee has just posted the forms for compliance and a summary of all the rules  -- called the "Authorized House Counsel" rules -- on their website, which can be found here. 

For in-house attorneys (such as labor & employment counsel) not licensed to practice in Connecticut, these new rules provide a clear path to compliance.  The new rules also provide a good opportunity for in-house counsel to advise other company attorneys about a relatively straightforward way to get into compliance.  It's not cheap (the fee is $1000) but it's a small price to pay to avoid grievance problems and malpractice issues for attorneys and companies.

Who can qualify for the new category? The rules, which can be found as Practice Book 2-15A and should be read thoroughly, state that a counsel must:

1. be a member of the bar in good standing in another jurisdiction (state, DC, or US territory; foreign countries do NOT qualify);
2. be employed by an “organization” as defined in Section 15A or will be relocating to Connecticut within three months in furtherance of employment by such an “organization;”
3. agree to abide by the rules regulating members of the Connecticut bar;
4. agree to submit to the jurisdiction of the statewide grievance committee and the superior court;
5. have a law degree (JD or LLB) from a law school approved by the bar examining committee (all ABA-approved law schools and Southern New England Law School and Massachusetts School of Law are approved by the committee);
6. file an application for registration as an authorized house counsel with the bar examining committee together with the required forms, documents and the fee of $1,000.00.
   

The safe-harbor provision states that attorneys who file by June 30, 2008 as an Authorized House Counsel ("AHC"),

1. will not be denied registration as AHC because he or she worked in an in-house position  prior to January 1, 2008 and
2. shall not be subject to an enforcement action for unauthorized practice of law for action as counsel to an “organization” prior to January 1, 2008 if the applicant ultimately becomes certified as an AHC.
   

Opportunities to get into compliance with a new law or rule, through a safe-harbor provision, only come around once in a long while. In-house counsel who are not yet licensed to practice in Connecticut should avail themselves of this opportunity because come July 1, 2008, "ignorance" of the new rules may not be a good defense to an unauthorized practice of law claim. 

Companies should also use the next six months to ensure that all of its in-house counsel in Connecticut either comply with the new rules or are already licensed in Connecticut.

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