Can a U.S. law firm make a foreign-licensed lawyer a partner without violating the rule against partnering with nonlawyers?

Plain-English summary

The committee considered whether forming a partnership with foreign lawyers ran afoul of the Model Rules' prohibitions on partnering with nonlawyers, sharing legal fees with nonlawyers, and assisting the unauthorized practice of law. It concluded that the Rules did not prohibit such partnerships where the foreign lawyer was a member of a recognized legal profession. The key move was characterizing qualified foreign lawyers as lawyers, not nonlawyers, for Rule 5.4 purposes.

The committee reasoned that "the prohibitions in Rule 5.4 are directed mainly against entrepreneurial relationships with nonlawyers and primarily are for the purpose of protecting a lawyer's independence in exercising professional judgment on the client's behalf free from control by nonlawyers." Because foreign lawyers who belong to a recognized legal profession can give clients those same protections, the committee believed they "should be considered lawyers rather than nonlawyers for purposes of Rule 5.4." It found support in Rule 7.5(b), which recognizes associations with lawyers not admitted in the jurisdiction, and saw nothing limiting "jurisdiction" to those within the United States.

Qualification turned on the facts. The committee said a person had to be "a member of a recognized legal profession in a foreign jurisdiction," a determination based on the foreign jurisdiction's legal structure and the services the person performed; professionals from a jurisdiction with no recognized legal profession would be treated as nonlawyers. It also reminded U.S. lawyers that, under Rule 5.5, they remained "prohibited by Rule 5.5(b) from assisting their foreign partners and associates in what would be deemed the unauthorized practice of law in any U.S. jurisdiction," and that Rules 5.1, 1.4, 1.6, and 1.7 governed supervision, client communication, confidentiality, and conflicts within such firms.

Currency note

This opinion was issued in 2001, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a U.S. firm take on a foreign lawyer as a partner or owner?

A: Yes, where the foreign lawyer was a member of a recognized legal profession. The opinion treated such a lawyer as a lawyer, not a nonlawyer, so Rule 5.4's bar on partnering and sharing fees with nonlawyers did not apply.

Q: Which foreign lawyers qualified?

A: Those belonging to a recognized legal profession in their jurisdiction, judged by that jurisdiction's legal structure and the services performed. The opinion noted that a professional from a jurisdiction with no recognized legal profession would be treated as a nonlawyer.

Q: What about unauthorized practice in the United States?

A: The opinion stressed that U.S. lawyers remained barred under Rule 5.5(b) from assisting a foreign partner in conduct that would be the unauthorized practice of law in any U.S. jurisdiction.

Background and rules framework

The opinion interpreted Rule 5.4 (professional independence; bar on partnering and fee-sharing with nonlawyers), Rule 5.5 (unauthorized practice of law), Rule 7.5(b) (firm names and associations across jurisdictions), and Rule 5.1 (responsibilities of partners and supervisory lawyers), with supporting reference to Rules 1.4, 1.6, and 1.7. Because the opinion predated the 2002 revisions, it applied these provisions as they then stood, including the ABA's then-current Model Rule for the Licensing of Legal Consultants.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 5.4 (professional independence; nonlawyer partnership and fee-sharing)
• ABA Model Rule 5.5 and Rule 5.5(b) (unauthorized practice of law)
• ABA Model Rule 7.5(b) (firm names; association with lawyers in other jurisdictions)
• ABA Model Rule 5.1 (responsibilities of partners and supervisory lawyers)

Other opinions cited:

• ABA Formal Op. 94-388 (Relationships Among Law Firms)
• ABA Formal Op. 84-351 (Letterhead Designation of "Affiliated" or "Associated" Law Firms)
• ABA Model Rule for the Licensing of Legal Consultants (foreign legal consultants as partners)

See also

• ABA Formal Op. 464: Fee Division With Firms That May Share Fees With Nonlawyers
• ABA Formal Op. 499: Passive Investment in Alternative Business Structures
• ABA Formal Op. 08-451: Outsourcing Legal and Nonlegal Support Services

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 01-423.pdf