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?

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

• ABA Formal Op. 504: Choice of Law Under Rule 8.5
• ABA Formal Op. 495: Lawyers Working Remotely
• NY State Bar Op. 1058: Trust account for a NY lawyer practicing immigration law out of state
• NY State Bar Op. 1254: Affiliating with a non-NY lawyer
• RI EAP Op. 2007-10: Disclosure to Out-of-State Regulator by RI/NY-Admitted Lawyer Is Governed by New York's Rules Under Rule 8.5

Source

• Landing page: https://nysba.org/ethics-opinion-1054/