Can a lawyer not licensed in Illinois represent an Illinois business on transactional and IP matters, and does associating with an Illinois lawyer cure any UPL concern?
ISBA Professional Conduct Advisory Opinion 25-01: Non-Illinois Lawyer Advising Illinois Businesses
Short answer: The opinion concludes that under Rule 5.5(d) a non-Illinois lawyer may advise an Illinois business on matters the lawyer is authorized by federal or other law to provide (the opinion identifies copyright and trademark work as examples). To the extent the lawyer would advise on Illinois law, one of Rule 5.5(c)'s temporary-practice exceptions must apply; Rule 5.5(c)(1) (association with an actively participating Illinois lawyer) cures otherwise unauthorized representation, but the Illinois lawyer must actually participate and share responsibility, and the client must give informed consent. Physical location outside Illinois does not, by itself, change the analysis.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Illinois Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer is a non-Illinois-licensed lawyer offering six-month transactional retainer packages to small businesses via a podcast. An Illinois business has retained the lawyer for contract drafting (worldwide use), risk analysis, contractor/employee strategy, copyright protection, and trademark protection.
On Rule 5.5(c) temporary-practice exceptions, the opinion concludes that Rule 5.5(c)(2) and (3) (litigation and ADR exceptions) do not apply because the services are transactional. Rule 5.5(c)(1) (association with an actively participating Illinois lawyer) would cure UPL, but the Illinois lawyer must actually "actively participate" and share responsibility (Rule 5.5, Comment 8), and the client must give informed consent under Rule 1.2(e), Rule 1.4, and Rule 1.5(f) (the last governing fee sharing).
On Rule 5.5(c)(4), the opinion concludes it is unclear on the facts. The exception applies where the services "arise out of or are reasonably related to" the lawyer's practice in the home jurisdiction. The opinion adopts the seven factors from Comment 14 to Rule 5.5 and from Ohio Supreme Court Ethics Op. 2011-2: prior representation; client residence or substantial contacts with the home jurisdiction; significant connection of the matter to the home jurisdiction; significant portion of the lawyer's work in the home jurisdiction; significant aspect of the matter involving home-jurisdiction law; multi-jurisdictional client activities; and lawyer's recognized expertise in a body of federal, nationally uniform, foreign, or international law.
On Rule 5.5(d)(2), the opinion concludes the non-Illinois lawyer may provide services through "an office or other systematic and continuous presence" in Illinois that the lawyer "is authorized to by federal or other law or rule to provide in this jurisdiction." The opinion applies this directly to the inquirer: copyright and trademark work, governed by federal law, falls within the exception (citing Sperry v. Florida Bar, 373 U.S. 379 (1963)), so association with an Illinois lawyer is not required.
On physical location, the opinion concludes that where one of the Rule 5.5 exceptions permits representation, the Rules do not require the non-Illinois lawyer to be physically in Illinois. The opinion adds a prudential note: the lawyer should also consult the rules of the jurisdiction where the lawyer is physically located.
The opinion adds an advertising caveat: any advertising directed at Illinois must comply with Illinois Rules 7.1-7.5 (citing ISBA Opinion 23-01 and Rule 5.5, Comment 21).
In practice
Under this opinion, the non-Illinois lawyer providing federal-law transactional services (copyright, trademark, work governed by federal law) to an Illinois business may proceed under Rule 5.5(d)(2) without associating an Illinois lawyer. Per the opinion, work that would constitute the practice of Illinois law requires either an Illinois-lawyer association with active participation and shared responsibility under Rule 5.5(c)(1) (with client informed consent), or a Rule 5.5(c)(4) showing that the services arise out of or are reasonably related to the lawyer's home-state practice (assessed on the Comment 14 factors). Advertising into Illinois must comply with Illinois Rules 7.1-7.5.
Common questions
Q: Can a non-Illinois lawyer give an Illinois business legal advice?
A: The opinion concludes yes if the services are within the lawyer's federal-law authorization under Rule 5.5(d)(2) (the opinion identifies copyright and trademark work as examples), or if one of Rule 5.5(c)'s temporary-practice exceptions applies. Pure Illinois-law work without one of these footings would be UPL.
Q: Does associating with an Illinois lawyer cure UPL?
A: Per Rule 5.5(c)(1), yes, but the Illinois lawyer must "actively participate" in the matter and share responsibility (Rule 5.5, Comment 8). The opinion concludes that the client must give informed consent to the association (Rule 1.2(e), Rule 1.4) and to any fee division (Rule 1.5(f)).
Q: Does Rule 5.5(c)(1) require that the Illinois lawyer be paid?
A: The opinion concludes the rule does not impose a compensation requirement, but client informed consent is required for any actual fee division.
Q: When do contract-drafting or transactional services for an Illinois client "arise out of" the non-Illinois lawyer's home-state practice for Rule 5.5(c)(4) purposes?
A: The opinion identifies seven factors from Comment 14 (mirroring Ohio Op. 2011-2): prior representation; client residence or contacts in the home jurisdiction; the matter's significant connection to that jurisdiction; significant work performed there; significant home-jurisdiction-law aspects; multi-jurisdictional client activities; and lawyer's recognized expertise in federal, nationally uniform, foreign, or international law.
Q: Can the non-Illinois lawyer represent the Illinois business while physically outside Illinois?
A: The opinion concludes yes; physical location does not change the Rule 5.5 analysis. The opinion adds that the lawyer should consult the rules of the jurisdiction where physically located.
Background and rules framework
The opinion interprets Illinois Rule 5.5 (multijurisdictional practice and UPL), including 5.5(c) temporary-practice exceptions and 5.5(d)(2) federal-authorization carveout, Rule 1.2(e) (informed consent to delegation), Rule 1.4 (client communication), Rule 1.5(f) (fee sharing with non-firm lawyer), and Rules 7.1-7.5 (advertising into Illinois). The opinion incorporates the analytical framework of Ohio Supreme Court Ethics Op. 2011-2 on the Rule 5.5(c)(4) factors and ISBA Opinion 23-01 on advertising and disclosure.
Citations and references
Rules of Professional Conduct:
- Illinois RPC 5.5(c)(1), (c)(2), (c)(3), (c)(4) (temporary-practice exceptions), with Comments 6, 8, 14, 21
- Illinois RPC 5.5(d)(2) (federal-authorization carveout)
- Illinois RPC 1.2(e) (delegation; informed consent)
- Illinois RPC 1.4 (client communication)
- Illinois RPC 1.5(f) (fee sharing with non-firm lawyer)
- Illinois RPC 7.1-7.5 (advertising into Illinois)
Cases:
- Sperry v. Florida Bar, 373 U.S. 379 (1963), cited for the federal-authorization carveout (patent practice).
Other opinions cited:
- ISBA Advisory Opinion 23-01: advertising and disclosure for out-of-state lawyers.
- ISBA Advisory Opinion 19-04: cited on fee sharing.
- Ohio Supreme Court Ethics Op. 2011-2: Rule 5.5(c)(4) seven-factor analysis.
See also
Source
- Landing page: https://www.isba.org/ethics/opinions/2501