Ezel / Ethics Opinions / NYSBA
NYSBA 2015-04-10

Which state's ethics rules govern a New York lawyer who runs a virtual law office in another state and practices only in federal court there?

Short answer: It depends on the conduct. For proceedings in a Virginia court where the lawyer is admitted, Virginia's rules apply; for other conduct, the rules of the admitting jurisdiction where the lawyer principally practices apply (Virginia, by the deemed-licensed principle), except that solicitation aimed at New York residents has its predominant effect in New York and is governed by New York's rules.
Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1054: Choice of law for a virtual law office in another state

Short answer: Under Rule 8.5, which jurisdiction's ethics rules apply turns on the conduct: Virginia's rules for proceedings in a Virginia court where the lawyer is admitted; the rules of the admitting jurisdiction where the lawyer principally practices for other conduct (Virginia, under the deemed-licensed principle); but New York's rules for solicitation directed at New York residents.

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.

View original opinion

Plain-English summary

The inquirer is admitted in New York and Pennsylvania and planned a solo virtual office in Virginia limited to federal practice, the Fourth Circuit, the Virginia federal district courts, and the Board of Veterans Appeals, using a physical Virginia office two days a month with a private mailbox and phone forwarding (¶¶ 1-4). The question was which jurisdiction's ethics rules would govern. Under Rule 8.5(a), a New York-admitted lawyer remains subject to New York's disciplinary authority wherever the conduct occurs, but Rule 8.5(b) supplies the choice-of-law rule for which set of rules applies (¶ 6).

For conduct in connection with a proceeding before a court in which the lawyer is admitted, Rule 8.5(b)(1) applies the rules of the jurisdiction where the court sits, unless the court's own rules provide otherwise (¶ 8). The committee held that the Board of Veterans Appeals is not a "court" for this purpose: when New York adopted Rule 8.5, the Appellate Divisions chose the word "court" rather than "tribunal," so administrative tribunals are excluded (¶ 8, citing N.Y. State 968 (2013) and N.Y. State 1027 (2014)).

For other conduct, Rule 8.5(b)(2) applies the rules of the admitting jurisdiction in which the lawyer principally practices, unless the conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed (¶ 9). Although the inquirer is not formally admitted in Virginia, the committee applied N.Y. State 815 (2007): a lawyer permitted to practice in another jurisdiction without formal admission is "deemed licensed" there, so Virginia's rules would ordinarily govern (¶ 10). The committee added an exception: solicitation directed at New York residents has its predominant effect in New York, so New York's rules apply to that solicitation (¶ 10, citing Rule 7.3(i)). Whether Judiciary Law § 470 requires a physical New York office is a question of law the committee did not resolve, though it noted the Court of Appeals confirmed on March 31, 2015 that the statute requires a physical office, with the Second Circuit's constitutional question then pending, and that there is no "virtual law office exception" to the Rules (¶¶ 11-13).

In practice

Under the New York rules as they stood at the time of the opinion, the committee made the governing rules turn on the kind of conduct. Proceedings in a Virginia court in which the lawyer is admitted draw Virginia's rules under Rule 8.5(b)(1); because the Board of Veterans Appeals is not a "court," work before it falls under Rule 8.5(b)(2). For non-court conduct, the rules of the admitting jurisdiction in which the lawyer principally practices govern, which the committee found to be Virginia under the deemed-licensed principle of N.Y. State 815. The committee carved out solicitation aimed at New York residents, which has its predominant effect in New York and is governed by New York's rules, and it treated the Judiciary Law § 470 physical-office question as a matter of law outside its jurisdiction.

Common questions

Q: Which state's ethics rules apply when a New York lawyer practices from a virtual office in another state?

A: It depends on the conduct. Rule 8.5(b)(1) applies the forum court's rules to proceedings in a court where the lawyer is admitted; Rule 8.5(b)(2) applies the rules of the admitting jurisdiction where the lawyer principally practices to other conduct, unless the conduct clearly has its predominant effect elsewhere (¶¶ 8-9).

Q: Is a federal administrative board like the Board of Veterans Appeals a "court" for choice-of-law purposes?

A: No. The committee held that Rule 8.5(b)(1)'s reference to a "court" does not include administrative tribunals, so conduct before the Board is governed by Rule 8.5(b)(2) instead (¶ 8).

Q: Does practicing in a state without being formally admitted there mean that state's rules do not apply?

A: No. Under N.Y. State 815, a lawyer permitted to practice in a jurisdiction without formal admission is "deemed licensed" there, so that jurisdiction's rules can govern under Rule 8.5(b)(2) (¶ 10).

Q: If the lawyer solicits New York clients from the out-of-state office, whose rules govern that solicitation?

A: New York's. Solicitation directed at New York residents has its predominant effect in New York, so New York's rules apply to it (¶ 10).

Background and rules framework

The opinion interprets New York Rule 8.5 (disciplinary authority and choice of law), corresponding to ABA Model Rule 8.5, and references Rule 5.5 (practicing law in a jurisdiction consistent with its regulation) and Rule 7.3(i) (solicitation directed at New York residents). The analysis turns on Rule 8.5(b)'s split between conduct connected to a court proceeding and all other conduct, and on whether a lawyer permitted to practice in a jurisdiction without formal admission is "licensed to practice" there.

Citations and references

Rules of Professional Conduct:

  • MR 8.5 / NY RPC 8.5(a), (b)(1), (b)(2) (disciplinary authority; choice of law)
  • MR 5.5 / NY RPC 5.5 (practicing consistent with a jurisdiction's regulation)
  • MR 7.3 / NY RPC 7.3(i), 7.1(h) (solicitation; advertising office-address requirement)

Statutes:

  • N.Y. Judiciary Law § 470 (in-state office requirement for nonresident attorneys)

Cases:

  • Schoenefeld v. New York, 748 F.3d 464 (2d Cir. 2014), § 470 physical-office requirement
  • Matter of Larsen, 182 A.D.2d 149 (2d Dept 1992), § 470 office requirement

Other opinions cited:

  • N.Y. State 968 (2013) and N.Y. State 1027 (2014): "court" in Rule 8.5(b)(1) excludes administrative tribunals
  • N.Y. State 815 (2007): a lawyer permitted to practice without formal admission is "deemed licensed"
  • N.Y. State 1025 (2014): no "virtual law office exception" to the Rules

See also

Source