Can a lawyer not admitted in Alaska open an Alaska office limited to federal immigration practice?

Plain-English summary

The Committee was asked whether an immigration lawyer who is not admitted in Alaska may open an Alaska office exclusively to practice federal immigration law. It concludes the lawyer may maintain a physical Alaska office, provided the lawyer clearly advises clients that the lawyer is not an Alaska lawyer and avoids advising on legal issues outside immigration law.

The opinion grounds the conclusion in Rule 5.5(d)(2), which lets a lawyer admitted in another U.S. jurisdiction provide legal services that the lawyer is authorized to provide under federal or other law. Federal regulation allows immigration lawyers admitted in any state to practice, and under the Supremacy Clause a state cannot govern attorney practice before a federal agency. The Rule's commentary, the opinion notes, otherwise bars a systematic and continuous presence in Alaska without general admission, but the (d)(2) exception covers this federally authorized immigration practice.

The opinion pairs the conclusion with cautions. It worries that a federally authorized but non-Alaska-admitted lawyer risks practicing outside the federal area, because the very acts of interview, analysis, and explanation of legal rights are the practice of law, and it cites cases warning against using a federal-practice shield to engage in broader unauthorized practice. Under Rule 1.2 the lawyer must limit the representation to the federal immigration area, and under Rule 7.1 the lawyer may not make false or misleading communications about the lawyer or the services. The opinion suggests affirmative steps to avoid misleading clients or the public: addressing the limits in the fee agreement, noting them on letterhead or office signage, and stating to clients that the lawyer is not an Alaska Bar member. It also reminds that under Rule 8.5(a) such a lawyer is subject to Alaska's disciplinary authority for legal services offered or provided in the state.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer admitted elsewhere may keep an Alaska office devoted exclusively to federal immigration practice under Rule 5.5(d)(2), but must confine the representation to immigration matters (Rule 1.2) and must not mislead clients or the public about the lawyer's status (Rule 7.1). The opinion identifies concrete steps it suggests considering: stating the limits in the fee agreement, on letterhead, and in office signage, and affirmatively telling clients the lawyer is not an Alaska Bar member. It notes the lawyer remains subject to Alaska discipline under Rule 8.5(a).

Common questions

Q: Can a lawyer not licensed in Alaska open an Alaska immigration office?

A: Yes. The opinion concludes Rule 5.5(d)(2) permits an out-of-state lawyer to maintain an Alaska office for the exclusive practice of federal immigration law.

Q: What conditions apply?

A: Per the opinion, the lawyer must clearly advise clients that the lawyer is not an Alaska lawyer, limit the practice to federal immigration matters under Rule 1.2, and avoid false or misleading communications under Rule 7.1.

Q: How should the lawyer disclose their status?

A: The opinion suggests addressing the limits in the fee agreement, noting them on letterhead and office signage, and affirmatively stating to clients that the lawyer is not an Alaska Bar member.

Q: Is the out-of-state lawyer subject to Alaska discipline?

A: Yes. The opinion reminds that under Rule 8.5(a) a lawyer not admitted in Alaska is subject to Alaska's disciplinary authority for legal services offered or provided in the state.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 5.5(d)(2) (multijurisdictional practice authorized by federal or other law, analog of Model Rule 5.5), with Rule 1.2 (scope), Rule 7.1 (communications about services), and Rule 8.5(a) (disciplinary authority). It relies on federal immigration regulation and Supremacy Clause case law, principally Sperry v. Florida.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 5.5(d)(2) (multijurisdictional practice) and commentary
• Alaska RPC 1.2 (scope), 7.1 (communications), 8.5(a) (disciplinary authority)

Regulations and cases:

• 8 C.F.R. § 1.1(f) (immigration practice)
• Sperry v. Florida, 373 U.S. 379 (1963); Augustine v. Dep't of Veterans Affairs, 429 F.3d 1334 (9th Cir. 2005)
• Kennedy v. Bar Ass'n of Montgomery County, 561 A.2d 200 (Md. 1989)

See also

• ABA Formal Op. 495: Lawyers Working Remotely
• CA COPRAC Op. 2023-208: Remote Practice

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2010-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2010-1
ABILITY OF LAWYER NOT ADMITTED IN ALASKA
TO MAINTAIN ALASKA OFFICE FOR FEDERAL IMMIGRATION PRACTICE
Question Presented
May a lawyer whose practice is restricted to immigration matters maintain an
Alaska office for purposes of practicing law when not an admitted member of the Alaska
Bar Association?
Conclusion
Assuming that the lawyer clearly advises his clients that he is not an Alaska
lawyer and avoids advising regarding legal issues outside of immigration law, the lawyer
may maintain a physical office in Alaska.
Discussion
The Ethics Committee has received an inquiry as to the permissibility of an
immigration lawyer not licensed as a lawyer in Alaska opening up an Alaska office
exclusively for the purposes of practicing federal immigration law. Per federal
regulations, immigration lawyers need only be admitted lawyers of any state. 8 C.F.R. §
1.1(f); Dingemans v. Board of Bar Examiners, 568 A.2d 354 (Vt. 1989).1
The ability of a lawyer authorized by federal law to practice in Alaska is governed
by the Alaska Rules of Professional Conduct, Rule 5.5(d)(2), which states:
A lawyer admitted in another United States jurisdiction and not disbarred or
suspended from practice in any jurisdiction, may provide legal services in this
jurisdiction that:
....

1

A state law purporting to govern attorney practice before a federal administrative
agency is invalid pursuant to the Supremacy Clause. E.g., Augustine v. Department of
Veterans Affairs, 429 F.3d 1334 (9th Cir. 2005). Other examples of the Supremacy
Clause affecting attorney licensing include the representation of clients in patent
proceedings, bankruptcy proceedings, Social Security disputes, and Veterans Affairs
matters. Sperry v. Florida, 373 U.S. 379 (1963); Matter of Bright, 171 B.R. 799 (E.D.
Mich. 1994).

(2) are services that the lawyer is authorized to provide under federal law or other
law of this jurisdiction.
The conclusion that the lawyer may have a physical office in Alaska is also reflected in
the accompanying Commentary, which states:
With the exception of paragraphs (d)(1)2 and (d)(2), the Rule does not authorize
the systematic and continuous presence in this jurisdiction without being admitted
to the practice generally here. (Emphasis added.)
Although the Committee concludes that Rule 5.5(d)(2) allows a lawyer not
admitted in Alaska to maintain an Alaska office for the exclusive practice of immigration
law, the Committee has concerns that lawyers practicing under federal law but not
admitted to practice in Alaska risk practicing law outside the authorized federal area of
practice, since the “very acts of interview, analysis and explanation of legal rights
constitute practicing law.” Kennedy v. Bar Ass'n of Montgomery County, Inc., 561 A.2d
200 (Md. 1989) (unauthorized practice of law by lawyer admitted to federal district
court); Office Of Disciplinary Counsel v. Marcone, 855 A.2d 654, 656 (Pa. 2004);
Attorney Grievance Commission of Maryland v. Harris-Smith, 737 A.2d 567, 573 (Md.
App. 1999) (federally licensed attorney should not triage incoming cases because of
danger that advice would be artificially canted in safe direction and risk that unlimited
practice of law will take place behind shield of federal practice); In re Lite Ray Realty
Corp., 257 B.R. 150 (S.D.N.Y. 2001) (attorney suspended by New York bar cannot rely
solely on admission to federal court to practice law). The Committee also has concerns
about an attorney’s duty to avoid false or misleading statements to potential clients as
well as other counsel and courts. See Alaska Rules of Professional Conduct, Rules 3.3
and 4.1.
The Committee’s concern is that clients and the public should not be misled about
the lawyer’s status of not being admitted to the Alaska Bar Association and therefore not
authorized to practice law in Alaska except as provided under federal law. Under Alaska
Professional Conduct Rule 1.2, the lawyer is required to limit the scope of his
representation to the area of his federal practice. Under Rule 7.1, the lawyer is prohibited
from making false or misleading communications regarding the lawyer or his services.
Affirmative steps should be taken to avoid the potential for violating these rules.
Examples of steps the lawyer might consider include expressly addressing the issue in the
fee agreement, noting the limits of the practice on letterhead or in office signage, and
affirmatively stating to clients that the lawyer is not a member of the Alaska Bar
Association.

2

Paragraph (d)(1) governs in-house counsel performing services for an employer
for which pro hac vice admission is not required.

Finally, the Committee reminds any lawyer with an Alaska office that a lawyer not
admitted in Alaska is subject to the disciplinary authority of Alaska if the lawyer provides
or offers to provide any legal services in this state. See Alaska Professional Conduct
Rule 8.5(a).
Approved by the Alaska Bar Association Ethics Committee on April 1, 2010.
Adopted by the Board of Governors on April 27, 2010.