(Inquiry No. 2015-3 )
Practice and / or advertisement in New York jurisdiction by practitioner of Federal immigration law, who is not admitted to practice in New York.
Practitioners from out of the jurisdiction may represent within the jurisdiction on Federal immigration law exclusively, so long as disclosures are made and coordination with New York attorneys regarding State consequences. Advertisement for the same immigration “of counsel” to Nassau County firm is proper where disclosure is made about lack of membership in New York bar.
An exclusive immigration practitioner may advise on only Federal immigration matters without being a member of the New York bar.
Such an attorney may advertise such a practice in New York so long as the proper disclosures are made to allow the public to understand that s/he is not a member of the New York bar.
Nassau County Bar Association Ethics Opinion 1998-8
An immigration attorney from outside of this jurisdiction and not a member of the New York bar has inquired whether the attorney may exclusively practice what has been described as “Federal” immigration law within the jurisdiction, and whether the attorney may advertise the same practice as “of counsel” to a firm within the jurisdiction.
May an out of state attorney (not admitted in New York, but admitted to the Federal Bar) practice immigration law in New York, without being admitted in New York?
May an out of state attorney (not admitted in New York, but admitted to the Federal Bar) who is “of counsel” to a Nassau County Firm, but not admitted in New York, advertise under his own name, legal services for federal immigration law.
1. Immigration Practice by an Out of State Attorney
With respect to unauthorized practice of law in the jurisdiction, Rule 5.5(a) of the New York Rules of Professional Conduct mandates the following general prohibition:
A lawyer shall not practice law in a jurisdiction in violation of the regulation
of the legal profession in that jurisdiction.
The relevant inquiry, then, is not whether the attorney is a member of the New York bar, but rather what is the “regulation” and in what “jurisdiction” is the attorney practicing.
The jurisdiction in which the inquiring attorney is practicing is Federal Courts and Federal administrative proceedings with applicable Federal laws exclusively. The inquiring counsel is not asking about practicing in New York courts, advising on any aspect of New York law, or even about giving advice on the ramifications on the State level of what may occur in Federal administrative determinations or settlement. In short, there simply is no New York aspect to this attorney’s law practice; s/he exclusively is in “Federal” jurisdiction, and not in any New York jurisdiction. (The actual geographic location of the rendered advice is immaterial for the purposes of this inquiry)
While the Committee does not conduct legal research to advise on “regulations” for requirements to practice in Federal matters, it is advised that the inquiring attorney carefully examine the applicable rules and regulations of the non-New York jurisdiction in which s/he is practicing. Further, the inquiring attorney must coordinate efforts with a New York practitioner so as to confirm there will be no New York consequences to the immigration representation (e.g., New York state benefits affected by Federal immigration practice).
We note that the complementary issue was addressed by this Committee whether a New York attorney may draft documents for a Florida client, and it was answered in the affirmative, provided certain precautions be adhered to:
Under N.Y. Lawyer’s Code DR 3-101(B) for a lawyer admitted to the New York Bar (but
not the Florida Bar) to give legal advice and draft a trust and will and selected documents
in New York for a Florida resident in consultation with Florida counsel who will review
same and whose services will be disclosed to and paid for by the client. Nassau County
Bar Association Ethics Opinion 1998-8.
Hence, whereas before we advised that a New York attorney may practice in New York to assist an out-of-state client with estate matters in another jurisdiction so long as there was another attorney in that other jurisdiction reviewing the matter, we now advise the flip side of the matter, that an exclusive immigration practitioner may advise on only Federal immigration matters without being a member of the New York bar.
2. Advertisement for Non-New York-Bar Attorney
The second inquiry is necessarily governed by the conclusions regarding inquiry 1, above (current capacity to practice immigration law in New York), as well as under Rule 7.1(a) under the New York Rules of Professional Conduct, which provides that an attorney advertisement may not contain false, deception or misleading information. To the extent an out of jurisdiction attorney wishes to practice areas of law that are exclusively Federal in nature, then the attorney advertising should be clear of the exclusivity of this practice, the limits of the advising services, and lack of membership in the New York bar.
The out-of-jurisdiction attorney may advise and represent exclusively in Federal immigration laws, but must only remain in this limited capacity, and must coordinate with a member of the New York bar about the New York- related consequences of the Federal practice so as to properly advise the client. The attorney also may advertise services, so long as all other advertisement requirements under the Rules of Professional Conduct are adhered to, and the attorney makes proper disclosures so as to inform the public of the limited nature of the practice at issue.
Approved by the full Committee on November 2015.
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