Limited Practice Application Properly Denied

The Delaware Supreme Court affirmed the denial of an application of an application for limited legal practice

(1) In September 2023, Geoffrey Polk, Esquire, submitted an application for a Delaware Certificate of Limited Practice as in-house counsel under Supreme Court Rule 55.1. The application stated that Polk was an active member in good standing of the state bars of Illinois, Texas, Indiana, Maryland, and Florida, and of the bar of the District of Columbia Court of Appeals. It also stated that Polk was “employed exclusively as legal counsel for the Presidential Title LLC whose business is other than the practice of law or the provision of legal services.” The employer affidavit that accompanied the application, which Polk signed as President of Presidential Title LLC, stated that Presidential Title’s “principal place of business in Delaware” was “8 The Green, Ste A, Dover, DE 19901.” The affidavit further certified that Polk was “employed as a lawyer by Presidential Title LLC or one or more of its subsidiaries or affiliates whose business is other than the practice of law or the provision of legal services.”

(2) After communications between Polk and Court staff and the Office of Disciplinary Counsel (“ODC”) regarding Polk’s eligibility for a Certificate of Limited Practice, the application was denied on January 23, 2024.

On appeal

Polk challenges the denial of his application on three grounds. First, he contends that, to the extent that Rule 55.1 requires Polk to be a resident of Delaware, it violates the Privileges and Immunities Clause of the United States Constitution. Second, he argues that Rule 55.1’s requirement that an applicant be “employed in the state” is unconstitutionally vague. Third, Polk asserts that the denial was improperly based on facts outside the four corners of his application and its accompanying documents. After Polk filed his opening brief, the Court appointed an amicus curiae to file an answering brief in opposition to Polk’s position. After careful consideration, we conclude that Polk’s application was properly denied.

Governing Rule

DLRPC Rule 5.5(d)(1) allows “in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer” to have an office or other systematic or continuous presence in Delaware, without violating DLRPC Rule 5.5(b), if such lawyer complies with Supreme Court Rule 55.1. In-house counsel’s provision of legal services to his or her Delaware employer, without passing the bar and submitting to the other requirements for admission to the Delaware bar set forth in Supreme Court Rule 52, “does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work.

Vagueness claim

The rules are sufficiently clear. DLRPC Rule 5.5 is based on the ABA model rule, which has been widely adopted and applied across the United States. And, like Delaware, many of the states that have adopted Rule 5.5 have also adopted registration requirements for those seeking to practice under the in-house exception. As discussed above, DLRPC Rule 5.5 prohibits a non-Delaware lawyer from establishing “an office or other systematic and continuous presence in this jurisdiction for the practice of law”, unless one of the exceptions in subparagraph (d) is satisfied. The prohibition is clear, and Polk offers no argument to the contrary.

The rules also provide sufficient guidance to a licensed lawyer as to when he or she may provide legal services in this state without admission to the Delaware bar.

Here

Polk’s application was inconsistent with the conclusion that he was “employed in the state as a lawyer working exclusively for a for-profit or a nonprofit . . . entity . . . , the business of which is lawful and is other than the practice of law or the provision of legal services.” We therefore affirm the denial of his application.

“In this state”

Because the publicly available records of the Delaware Division of Corporations showed that address—the only Delaware address provided in the application materials—was the address of Presidential Title’s registered agent, the Denial Letter concluded that Presidential Title did not have a place of business in Delaware.

Result

we conclude that Polk’s application for a Certificate of Limited Practice under Supreme Court Rule 55.1 was properly denied. Polk may reapply if his circumstances change. The Court will refer consideration of amendments to Rule 55.1 to an appropriate committee, as discussed herein.

(Mike Frisch)