May a lawyer not admitted in Illinois run an Illinois immigration practice using a nonlawyer assistant?

Plain-English summary

A lawyer not admitted in Illinois proposes to practice immigration law from an established Illinois office, using an Illinois-based nonlawyer assistant who meets with clients and gathers information for the lawyer to use in preparing immigration filings. The opinion assumes the arrangement amounts to the practice of law in Illinois and asks whether it is permissible.

On the multijurisdictional question, the opinion holds the arrangement is permissible under Rule 5.5. Rule 5.5(b)(1) bars an out-of-state lawyer from establishing a systematic and continuous Illinois presence for the practice of law absent an exception, but Rule 5.5(d)(2) provides an explicit exception for services the lawyer is authorized to provide by federal law. Immigration practice qualifies: federal law allows an immigration lawyer to be a member of any state's bar (8 C.F.R. §§ 1.2, 292.1(a)(1)), with no requirement of local admission, and a state requirement to the contrary would violate the Supremacy Clause (Sperry v. Florida). The opinion notes other jurisdictions reach the same result (Virginia, Alaska opinions).

The opinion sets conditions. The lawyer and the assistant must not state or imply the lawyer is admitted in Illinois (Rule 5.5(b)(2)); letterhead, business cards, website, and advertising that show an Illinois contact point should state the lawyer is not admitted in Illinois with a practice limited to immigration, or risk misleading the public under Rule 7.1 (citing ISBA Op. 12-17 and out-of-state authority). Critically, the lawyer must not stray beyond the immigration niche that permits unlicensed practice: the lawyer may not hold out as available for general practice, advise even an immigration client on local-law matters, or draft documents founded on local-law principles.

On supervision, the opinion holds the lawyer must adequately supervise the nonlawyer assistant under Rule 5.3(b). Paralegals and other nonlawyer assistants performing lawyer-like functions under supervision are not engaged in unauthorized practice, and a properly supervising lawyer is not assisting unauthorized practice. The opinion flags that supervision is harder when an out-of-state lawyer works through an in-state assistant, and stresses particular attention to preventing the assistant from soliciting clients in violation of the advertising and solicitation rules.

In practice

The opinion holds that an out-of-state lawyer may practice immigration law from an Illinois office under the Rule 5.5(d)(2) federal-law exception, notwithstanding Rule 5.5(b)'s general bar, because immigration practice is federally authorized without local admission. It holds the lawyer must not hold out as Illinois-admitted, must disclose the licensure limitation on letterhead and advertising under Rule 7.1, must confine the work to immigration matters and not advise on or draft local-law documents, and must adequately supervise any nonlawyer assistant under Rule 5.3(b), guarding especially against improper client solicitation.

Common questions

Q: Can a lawyer not admitted in Illinois open an Illinois immigration office?

A: Yes. The opinion concludes the Rule 5.5(d)(2) federal-law exception permits it, because federal law authorizes immigration practice by a lawyer admitted in any state without requiring local admission.

Q: What must the lawyer disclose to the public?

A: That the lawyer is not admitted in Illinois and practices only immigration law. The opinion holds letterhead, cards, website, and ads with an Illinois contact point must say so, or they are misleading under Rule 7.1.

Q: Can the lawyer also handle non-immigration matters for these clients?

A: No. The opinion holds the lawyer must stay within the immigration niche and may not advise on local-law issues or draft documents founded on local law, even for an immigration client.

Q: Is using an Illinois nonlawyer assistant the unauthorized practice of law?

A: No, if properly supervised. The opinion holds a nonlawyer assistant performing lawyer-like functions under Rule 5.3(b) supervision is not engaged in unauthorized practice, and the supervising lawyer does not assist it.

Background and rules framework

The opinion interprets Illinois Rule 5.5 (unauthorized and multijurisdictional practice; Model Rule 5.5), particularly the Rule 5.5(b) bar on out-of-state practice presence and the Rule 5.5(d)(2) federal-law exception, Rule 7.1 (misleading communications; Model Rule 7.1), and Rule 5.3(b) (supervising nonlawyer assistants; Model Rule 5.3). It applies federal immigration-practice authority and Supremacy Clause precedent.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 5.5(b), (d)(2) (unauthorized/multijurisdictional practice) / MR 5.5
• Illinois RPC 7.1 (misleading communications) / MR 7.1
• Illinois RPC 5.3(b) (supervising nonlawyer assistants) / MR 5.3

Statutes and regulations:

• 8 C.F.R. §§ 1.2, 292.1(a)(1) (federal immigration-practice authorization)

Cases:

• Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), state may not bar federally authorized practice

Other opinions cited:

• ISBA Opinions 12-17, 684, 286
• Virginia Legal Ethics Op. 1856 (2011); Alaska Bar Op. 2010-1; D.C. UPL Op. 17-06 (2006); Philadelphia Op. 2005-14 (2005)

See also

• ISBA Ethics Op. 12-17: Out-of-State Lawyers in Illinois Grievance Arbitration
• ISBA Ethics Op. 13-03: Nonlawyer Representation in a FINRA Arbitration
• NY State Bar Op. 1091: Reporting an Out-of-State Lawyer's Unauthorized Practice

Source

• Landing page: https://www.isba.org/ethics/opinions/1308