BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 2012-3
(Inquiry No. 2012-3 )
New York equity partnership with and activity in New York by attorney admitted solely in the State of Massachusetts and the New York Federal Courts — Advertising limitations.
Two immigration counsel, one admitted to practice in the state and federal courts of Massachusetts, and one admitted to practice in the state and federal courts of New York, may form a New York equity partnership and share fees earned through the practice of law in New York. The Massachusetts attorney may be the “managing partner” ofthe New York office, under the supervision of the New York attorney. The jurisdictional limitations of the Massachusetts attorney’s practice must be disclosed in any advertisements. Whether any activities of the Massachusetts attorney in New York would constitute the “unauthorized practice of law” is a legal issue as to which this Committee does not opine.
A retired attorney who has properly certified his status with the Office of Court Administration may continue to provide legal services to clients without restriction if those services are rendered without compensation and the client is fully informed of any material limitations that might be placed on the representation as a result of the attorney’s retired status—A retired attorney who agrees to hold funds or property in trust for clients must comply fully with Rule 1.15 concerning preservation of identity of funds and property of others—A retired attorney may give legal advice and provide legal services as an executor and trustee provided those services are rendered for no compensation—A retired attorney must disclose and explain his retired status to any prospective or current client with respect to any legal representation undertaken after retirement. But a retired attorney need not make any disclosure to third parties or adversaries with whom he deals on the client’s behalf, or alter office signage, personal stationary or directory listings to reveal that he is retired from practice.
Inquiring counsel is contemplating entering into a formal New York equity partnership with an attorney who is licensed in Massachusetts. They will practice immigration law. Both attorneys are admitted to the federal courts, in their respective states. The Massachusetts lawyer will be in the New York office four days a week.
Inquiring counsel asks whether the Massachusetts lawyer can be the managing partner for the New York partnership, with a caveat that the New York attorney will supervise all the work done by the firm. Inquiring counsel also asks whether, if the New York partnership does any radio advertisement, the Massachusetts lawyer can do the actual radio ad for the partnership (expected to air in New York), with the caveat that the advertisement will disclose that the attorney is licensed in Massachusetts and that the other attorney is licensed in New York.
In Opinion No. 861, 2011 WL 7784071, the New York State Bar Association Committee on Professional Ethics (the “State Bar”) opined that the New York office of a law firm operating as a PLLC may have as one of its owners another PLLC located outside New York so long as all of the owners of the out-of-state PLLC are attorneys and all legal fees generated by the out-of-state PLLC are distributed only to attorneys. The State Bar initially opined (with footnote omitted), 2011 WL 7784071, at *2:
Rule 5.4 of the New York Rules provides that “[a] lawyer or law firm may not share legal fees with a nonlawyer” (with exceptions not relevant here). The question is whether Rule 5.4 would prevent the PLLC located in State X from being an owner ofthe New York PLLC. So long as the PLLC in State X is owned entirely by attorneys and all legal fees generated by the State X PLLC are distributed only to attorneys, there is no sharing legal fees with a nonlawyer within the meaning of Rule 5.4. In that case, the PLLC in State X could be an owner of the New York PLLC. (Whether the substantive law regarding PLLCs in New York or in State X allows one PLLC to own all or part of another PLLC is a question oflaw on which we express no opinion.)
In the footnote omitted from the above quotation, the State Bar explained:
By “attorney” we mean a person licensed to practice law in a US jurisdiction or in a jurisdiction determined upon inquiry to provide persons admitted or licensed to practice law with education, training and ethical standards comparable to those of American lawyers. See N.Y. State 806 (2007) (interpreting the predecessor to Rule 5.4, DR 2-107(A».
Subsequently, the State Bar, in Opinion No. 864, 2011 WL 7784074, developed this concept even further. In Opinion No. 864, the State Bar determined that a lawyer is ethically permitted to work on a personal injury case with an out-of-state lawyer and share legal fees with that lawyer ifthe arrangement complies with Rule 1.5(g). The State Bar opined, 2011 WL 7784074, at *3:
Lawyers from other U.S. jurisdictions are “lawyers” within the meaning of Rule 1.5(g), and New York lawyers may share fees with lawyers from other U.S. jurisdictions as long as the feesharing arrangement complies with the terms of Rule 1.5(g). We do not believe that sharing fees with the Out-of-State Lawyer will diminish the quality of the representation or undermine the inquirer’s ability to fulfill the duties of loyalty and confidentiality.
See generally Roy Simon, Simon’s Code of Professional Responsibility Annotated at 447 (2008) (“Unlike a disbarred lawyer or a lawyer disqualified due to a conflict of interest, the out-of-state lawyer could handle the matter personally if he came to New York to be admitted pro hac vice.”); Rule 5.4, cmt.  (the prohibition on fee-sharing with nonlawyers is intended to protect the lawyer’s professional independence of jUdgment). Cf Rule 1.5, Cmt.  (“Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. “).
The State Bar, however, added an important caveat — one calling to the inquiring counsel’s attention the potential relevance of a rule oflaw, rather than ethics, as to which neither the State Bar nor this Committee could extend their opinion:
We assume that the Out-of-State Lawyer would not violate New York’s rules against unauthorized practice of law. If our assumption is incorrect, then the inquirer might be vio lating Rule 5.5(b) (lawyer shall not aid nonlawyer in the unauthorized practice of law). See N.Y. State 801 (2006) (interpreting the term “nonlawyer” for purposes of DR 3-103(A), the Code predecessor of Rule 5.5(b), to mean a non-New York lawyer, and interpreting DR 3-103(A) to prohibit a New York attorney from partnering with an out-of-state attorney whose services constitute the unauthorized practice oflaw).
It should be noted that the issue of inquiring counsel’s specific area of law has been dealt with extensively by the State Bar. In Opinion No. 863, 2011 WL 7784073, the State Bar observed:
Whether an “out-of-state lawyer” may practice law in New York State is a question of law beyond the scope of the Committee’s jurisdiction. N.Y. State 835 (2009). (We use the term “out-of-state lawyer” to mean a person who is not admitted to practice in New York but who is admitted to practice and in good standing in another U.S. jurisdiction.) As we observed in N.Y. State 835, the unauthorized practice oflaw in New York is governed by Judiciary Law §§ 476-a, 478 and 484. In particular, Judiciary Law § 478 provides that it is unlawful for a person not admitted in New York “to hold himself out to the public as being entitled to practice law … or advertise the title of lawyer.”
5. Federal law provides that a member in good standing of the bar of the highest court of any state, who is not under suspension or otherwise restricted in his or her practice of law, may practice before a Federal Immigration Court. See 8 C.F.R. §§ 1001.1(t), 1292.1 (a)(1). Whether these federal provisions permit a lawyer to engage in a limited practice of law in New York State without being admitted in New York is purely a question of law that is not answered by the New York Rules of Professional Conduct. Therefore, it is beyond our jurisdiction. N.Y. State 835.
Thus, the formation of the contemplated partnership is not ethically problematic, although the propriety of the particular practice activities by the Massachusetts attorney would be a legal, not ethical, issue, upon which no opinion is or can be given.
With respect to the allocation of responsibility, the State Bar, in Opinion No. 814 (Revised and Reissued), 2008 WL 788412, determined that the New York office ofa multi-state law frrm was permitted to be staffed solely by a non-partner lawyer who is admitted to practice in New York where the non-partner lawyer is supervised by an out-of-state partner who is licensed in another state but not in New York. Explained the State Bar, 2008 WL 788412, at *4:
Under the New York Lawyer’s Code of Professional Responsibility, the New York office of a multi-state firm may be managed by an associate or of counsel attorney who is admitted in New York and supervised by an out-of-state partner who is licensed in another state. The law firm is responsible for establishing procedures to ensure that the New York attorney complies with New York’s disciplinary rules.
If it is ethical for the New York office of a multi-state firm to be managed by an associate or of counsel attorney, supervised by an out-of-state partner, it should similarly be ethically permissible for the New York office to be managed by an out-of-state partner, supervised by an in-state partner. However, as again noted above, and as reaffirmed by the State Bar, 2008 WL 788412, at *2, “[0 ]ur jurisdiction is limited to questions arising under the Code, and does not extend to interpreting New York statutes on the unauthorized practice of law.”
While Opinion No. 814 was decided under the former Code of Professional Responsibility, rather than the current Rules of Professional Conduct, we have reviewed the same, and have determined that the result would be unchanged.
In addressing the question of an attorney’s “holding [him or herself] out” under the circumstances presented, the State Bar opined, 2011 WL 7784073, at *3:
[W]e believe that compliance with Rules 7.5(a) and 7.5(d) in these circumstances requires that the lawyer note on the firm letterhead where her name appears, and on her business cards, that (a) she is admitted to practice only in Texas, and (b) her practice in New York is limited solely to immigration matters. See New Jersey Supreme Court Committee on Unauthorized Practice of Law, Committee on Attorney Advertising, Opinion 44 (2008) (if an outof- state attorney is practicing exclusively immigration law in New Jersey, “all communications (including the firm’s letterhead, business cards, website, and advertising materials) must specifically state that the attorney is not licensed in New Jersey and that the attorney’s practice is limited to immigration matters”); Pennsylvania Ethics Op. 2005-14 (2005) (“Rules 7.1 and 7.5b require that the inquirer note on all her letterhead, office signage, business cards and on/in any other publicity or advertising vehicles, that she is admitted only in the state to which she is licensed, and that her practice in Pennsylvania is strictly limited to Immigration and Naturalization”).
13. For a lawyer in these circumstances to simply list that she is “Admitted in Texas” would not sufficiently “make clear the jurisdictional limitations” on the lawyer’s practice as required by Rule 7.5(d). See ABA Informal Op. 777 (1965) (a legend such as “Admitted to Practice in New York” would be improper because “it would not negative the right (or admission) to practice in the District” of Columbia, where the lawyer was not admitted). The requirement that the inquirer list the state in which she is licensed is essential to enable a member of the public to ascertain if a lawyer is admitted in good standing. Without this information, it would be unduly burdensome for potential clients and others to ascertain whether the inquirer is in good standing.
14. In addition, we believe that it would be prudent (though not required by the Rules) for the inquirer to add that she is “not licensed in New York State” (or words to that effect). That limitation would avoid any possible confusion regarding whether the inquirer is or is not licensed in New York.
15. A lawyer’s jurisdictional and subject matter limitations need not necessarily be included in an email signature block. If, however, the email constitutes an “advertisement” as defined in Rule 1.0(a), then it must comply with Rule 7.I(a). If it is also a “solicitation” under Rule 7 .3(b ) (defining certain types of advertising as “solicitation”), then it must also comply with Rule 7.3. Even ifan email is not an advertisement (and thus also is not a solicitation), the lawyer must not state or imply through any communication that she is admitted to practice in New York. See Rule 8.4 ( c) (prohibiting a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”).
The same requirements would be equally applicable to radio or other advertisements in which inquiring counsel’s prospective firm should engage.
Two immigration counsel, one admitted to practice in the state and federal courts of Massachusetts, and one admitted to practice in the state and federal courts of New York, may form a New York equity partnership and share fees’ earned through the practice of law in New York. The Massachusetts attorney may be the “managing partner” ofthe New York office, under the supervision of the New York attorney. The jurisdictional limitations of the Massachusetts attorney’s practice must be disclosed in any advertisements. Whether any activities of the Massachusetts attorney in New York would constitute the “unauthorized practice of law” is a legal issue as to which this Committee does not opine.
[Approved by the Full Committee on December 12, 2012]