Can a New York lawyer who practices principally abroad join a foreign firm with non-lawyer owners, like a UK Alternative Business Structure, without violating New York's rules?
NY State Bar Ethics Opinion 1041: Foreign practice and non-lawyer partnership abroad
Short answer: A New York lawyer who practices principally in a foreign country without being admitted there may do lawful work that does not require local licensing and may practice in a foreign entity that includes non-lawyer owners or supervisors, provided the foreign jurisdiction permits it and the lawyer's practice does not have its predominant effect in New York.
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
A New York lawyer planned to base a practice in the United Kingdom, where, as the committee assumed, the lawyer need not register or be admitted to carry on the contemplated work even though the same work would be the practice of law in New York. The lawyer also expected to join a UK Alternative Business Structure (ABS) under the UK Legal Services Act, an entity that may include non-lawyer owners and supervisors, such as management consultants or economists, which New York rules do not allow (¶¶ 1-4).
The committee resolved both questions through Rule 8.5's choice-of-law framework. Under Rule 8.5(a), a New York-admitted lawyer is always subject to New York's disciplinary authority wherever the conduct occurs; under Rule 8.5(b)(2), if the lawyer is licensed only in New York, New York rules apply, but if licensed in New York and another jurisdiction, the rules of the admitting jurisdiction where the lawyer principally practices apply, unless the conduct clearly has its predominant effect in another admitting jurisdiction (¶ 6, ¶ 7). Drawing on N.Y. State 815, the committee reiterated that "licensed to practice" includes informal authorizations to do work abroad that would be the practice of law in the United States, so long as the work is lawful where performed; on that basis the UK is an "admitting jurisdiction" for this lawyer (¶¶ 8-9, ¶ 12).
On the non-lawyer affiliation, the committee explained that Rule 5.4(b) and (d) ordinarily bar a New York lawyer from practicing in an entity with non-lawyer owners or supervisors, and Rule 5.4(a) bars sharing legal fees or forming a law partnership with a non-lawyer, and that these bars apply even where the entity sits in a jurisdiction that allows such structures, unless New York's choice-of-law rule makes the other jurisdiction's rules govern (¶ 10). Whether they govern depends on where the lawyer is admitted or deemed admitted, where the lawyer principally practices (a fact question assessed by factors from N.Y. State 1027), and whether the predominant effect is in another admitting jurisdiction (¶¶ 11-15). The committee contrasted N.Y. State 911, where New York lawyers practicing from a New York office for New York clients as a UK ABS were governed by New York rules because their predominant effect was in New York, with N.Y. State 889, where a lawyer principally practicing in DC could share fees with a non-lawyer partner there (¶¶ 16-18).
In practice
Under the New York rules as they stood at the time of the opinion, the opinion holds that conduct matching this fact pattern is permitted subject to stated conditions. Per the opinion, the analysis turns on three determinations under Rule 8.5(b): whether the lawyer is admitted or deemed "licensed to practice" in the foreign jurisdiction (here, yes, because the work is lawful there), where the lawyer principally practices, and whether the conduct has its predominant effect in New York. The committee treats the second and third as questions of fact beyond its jurisdiction. If the predominant effect is in New York, the opinion applies New York's Rule 5.4 bars on non-lawyer ownership and fee sharing; if it is in the foreign admitting jurisdiction that permits such structures, those rules govern instead. The committee also noted that conduct in connection with a New York court proceeding is separately governed by Rule 8.5(b)(1).
Common questions
Q: Can a New York lawyer practice abroad doing work that would be the practice of law in New York but needs no local license?
A: Yes, where the work is lawful in the foreign jurisdiction. The committee deemed the lawyer "licensed to practice" there under Rule 8.5(b), following N.Y. State 815 (¶¶ 8-9).
Q: Can the lawyer join a UK ABS that has non-lawyer owners or supervisors?
A: Yes, subject to conditions. New York's Rule 5.4 bars such structures, but those bars yield if, under Rule 8.5(b), the foreign jurisdiction's rules govern, which depends on principal practice and predominant effect (¶ 10, ¶ 19).
Q: What happens if most of the lawyer's clients or work are actually in New York?
A: Then the predominant effect may be in New York and New York's rules, including the Rule 5.4 prohibitions, would apply, as in N.Y. State 911 (¶ 15, ¶ 17).
Q: Who decides where the lawyer "principally practices"?
A: The committee called it a question of fact beyond its jurisdiction, assessed using factors from N.Y. State 1027 such as days worked, hours billed, client location, and the nature of the work (¶ 13, ¶ 14).
Background and rules framework
The opinion interprets New York Rule 5.4(a), (b), and (d) (non-lawyer ownership of and fee sharing with a law practice) and Rule 8.5(a) and (b) (disciplinary authority and choice of law), corresponding to ABA Model Rules 5.4 and 8.5. The analysis turns on whether the lawyer is "licensed to practice" in the foreign jurisdiction, where the lawyer "principally practices," and where the conduct has its "predominant effect."
Citations and references
Rules of Professional Conduct:
- MR 5.4 / NY RPC 5.4(a), (b), (d) (non-lawyer ownership; fee sharing)
- MR 8.5 / NY RPC 8.5(a), (b) (disciplinary authority; choice of law)
Other opinions cited:
- N.Y. State 815 (2007): "licensed to practice" includes informal foreign authorizations
- N.Y. State 1027 (2014): factors for "principally practices"
- N.Y. State 911 (2012): NY office practicing as a UK ABS is governed by NY rules
- N.Y. State 889 (2011): lawyer principally practicing in DC may share fees with a non-lawyer partner there
See also
- NY State Bar Op. 1042: Choice of law while a DC bar admission is pending
- NY State Bar Op. 1093: Dual practice with a foreign nonlawyer partnership
- NY State Bar Op. 1246: Partnership with a foreign lawyer and ABS
- NY State Bar Op. 1290: Multijurisdictional practice partnership with a non-US lawyer
Source
- Landing page: https://nysba.org/ethics-opinion-1041/