Can a lawyer admitted only in New York be of counsel to an out-of-state firm that practices under a trade name?
NY State Bar Ethics Opinion 1023: Of counsel to an out-of-state firm with a trade name
Short answer: A lawyer admitted only in New York may not be of counsel to an out-of-state firm that practices under a trade name, because New York prohibits practicing under a trade name, and under Rule 8.5 the New York-only lawyer cannot "principally practice" in the jurisdiction that permits the trade name, so New York's rules govern.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's 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 (Y) is admitted only in New York and wants to be of counsel to a District of Columbia firm being formed by a colleague (X), who is admitted in DC. The firm could not be named "X and Y" because that would imply Y is a partner, so X proposed a trade name based on the kind of law the firm practices, which DC permits and New York does not. The firm would disclose that Y is admitted only in New York. The inquirer asked whether a New York-only lawyer may be of counsel to such a trade-name firm (¶¶ 1-2).
The committee analyzed the question through Rule 8.5 (disciplinary authority and choice of law). Although many aspects of the DC firm's practice are governed by DC rules, certain aspects of Y's practice are governed by the New York Rules. Under Rule 8.5(b)(2), for non-court conduct, a lawyer licensed only in New York is governed by New York's rules, while a lawyer licensed in New York and another jurisdiction is governed by the rules of the admitting jurisdiction where the lawyer principally practices, subject to the predominant-effect exception (¶¶ 3-6).
The committee contrasted this case with N.Y. State 861 (2011), which had allowed a lawyer admitted in both New York and another jurisdiction, who principally practiced in that other jurisdiction, to operate under rules that jurisdiction permitted (such as a trade name or a nonlawyer partnership). That analysis did not apply here because Y is admitted only in New York and is therefore not authorized to "principally practice" in DC, the jurisdiction that allows the trade name. With New York's rules governing, and Rule 7.5(b) prohibiting practicing under a trade name, Y may not be of counsel to the trade-name firm (¶¶ 7-10).
The committee added that, although the inquiry was framed as an "of counsel" relationship, the same principles would apply to a New York-only lawyer who wished to become an associate or partner in an out-of-state trade-name firm (¶ 10 n.1).
In practice
Under the New York rules as they stood at the time of the opinion, the opinion holds that a lawyer admitted solely in New York may not be of counsel to an out-of-state firm practicing under a trade name. Per the opinion, the key is that Rule 8.5's choice-of-law analysis leaves the New York-only lawyer governed by New York's rules, and Rule 7.5(b) prohibits practicing under a trade name. The committee distinguished the different result available to a lawyer admitted in both jurisdictions who principally practices where the trade name is allowed, and noted the same conclusion would apply to an associate or partner role, not just to an of-counsel role.
Common questions
Q: Why can't the New York-only lawyer use the firm's DC trade name?
A: Because New York's rules govern the New York-only lawyer's conduct under Rule 8.5, and Rule 7.5(b) prohibits practicing under a trade name (¶¶ 8-10).
Q: Would the answer change if the lawyer were admitted in DC too?
A: It could. The committee distinguished N.Y. State 861, where a lawyer admitted in both jurisdictions who principally practiced where the trade name is allowed could operate under that jurisdiction's rules (¶¶ 7-9).
Q: Does it matter that the relationship is "of counsel" rather than partner?
A: No. The committee said the same principles would apply to a New York-only lawyer who wished to be an associate or partner in an out-of-state trade-name firm (¶ 10 n.1).
Background and rules framework
The opinion interprets New York Rule 7.5(b) (firm names, including the prohibition on trade names) and Rule 8.5(a)-(b) (disciplinary authority and choice of law), corresponding to ABA Model Rules 7.5 and 8.5. The analysis turns on whether a lawyer admitted only in New York can be governed by another jurisdiction's more permissive rules, which depends on where the lawyer is licensed and principally practices.
Citations and references
Rules of Professional Conduct:
- MR 7.5 / NY RPC 7.5(b), 7.5(c) (firm names; no trade names; no false partnership)
- MR 8.5 / NY RPC 8.5(a), 8.5(b) (disciplinary authority and choice of law)
Other opinions cited:
- N.Y. State 861 (2011); N.Y. State 889 (2011): a dual-admitted lawyer principally practicing elsewhere may follow that jurisdiction's rules
See also
- NY State Bar Op. 1042: Choice of law while a DC bar admission is pending
- NY State Bar Op. 1075: A trade name for a business coaching lawyers
- NY State Bar Op. 1107: Using "legal services" in a law firm name
Source
- Landing page: https://nysba.org/ethics-opinion-1023/