Ezel / Ethics Opinions / NYSBA
NYSBA 2015-06-10

If a lawyer is admitted only in New York but lives and practices immigration law solely in another state, must they keep their client trust account at a New York bank?

Short answer: No, unless the other state's rules require it. Under New York's choice-of-law rule (Rule 8.5(b)), a lawyer who is federally authorized to practice immigration law and works only in another state is treated as governed by that state's rules for escrow purposes, so New York Rule 1.15(b)'s in-state banking requirement does not apply unless the other state imposes its own.
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 Not binding precedent.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 1058: Trust-account duties of a New York lawyer practicing immigration law only in another state

Short answer: A lawyer admitted only in New York who is federally authorized to practice immigration law and resides and practices solely in another state is not required to keep an attorney trust account at a New York bank unless that other state's rules of professional conduct require it.

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

A lawyer recently admitted in New York planned to reside and practice solely in Illinois, limiting the practice to immigration law, and asked whether New York Rule 1.15(b)'s requirement to hold client funds in a New York banking institution applied (¶¶ 1-2). The committee assumed the lawyer would hold client funds incident to practice and framed the issue as a choice-of-law question (¶¶ 3-4).

Federal immigration regulations let a member in good standing of any state's bar represent parties before USCIS, the Board of Immigration Appeals, and the immigration courts, regardless of where the lawyer is admitted (¶ 5). The committee then applied Rule 8.5: although a New York-admitted lawyer is always subject to New York's disciplinary authority under Rule 8.5(a), the rules that authority will apply are set by the Rule 8.5(b) choice-of-law provisions (¶ 6). For conduct connected to a proceeding in a court, Rule 8.5(b)(1) applies the rules of the jurisdiction where the court sits; the committee noted that immigration disciplinary rules contain no escrow requirements and that the Board of Immigration Appeals is not a "court" within Rule 8.5(b)(1), citing N.Y. State 968 (2013) and N.Y. State 1027 (2014) (¶¶ 7-9).

For conduct not connected to a court proceeding, Rule 8.5(b)(2) applies the rules of the admitting jurisdiction in which the lawyer principally practices, or of another jurisdiction where the lawyer is licensed if the conduct's predominant effect is there (¶ 10). Following N.Y. State 815 (2007) and later opinions, the committee treated the lawyer as "licensed to practice" in Illinois because federal law authorized the immigration practice there, so New York would apply the Illinois rules, unless the lawyer solicits New York residents (where Rule 7.3(i) would point back to New York) (¶ 11). The committee found this consistent with Illinois's own Rule 8.5 and concluded that, unless the Illinois rules require an in-state-of-licensure trust account, the lawyer need not maintain a New York trust account, while noting both states could discipline the same conduct (¶¶ 12-15).

In practice

Under the New York rules as they stood at the time of the opinion, the committee resolved the trust-account question through Rule 8.5's choice-of-law analysis rather than by applying Rule 1.15(b) directly. The opinion's path: immigration tribunals are not "courts" for Rule 8.5(b)(1), so the court-rules branch does not control; under the catch-all in Rule 8.5(b)(2), a lawyer federally authorized to practice immigration law from an out-of-state office is treated as "licensed to practice" there, so that state's rules govern the escrow question. The practical upshot the committee stated is that a New York trust account is not required unless the other state's rules require an in-state trust account, a question of that state's law the committee did not decide. The committee flagged two wrinkles: soliciting New York residents would pull conduct back under New York's rules via Rule 7.3(i), and both New York and the other state may discipline the same conduct.

Common questions

Q: Does a New York-only lawyer who practices immigration law in another state need a New York trust account?

A: Not unless the other state's rules require it. The committee concluded New York's choice-of-law rule applies the other state's rules to the escrow question (¶ 15).

Q: Is an immigration court or the Board of Immigration Appeals a "court" for New York's choice-of-law rule?

A: No. The committee concluded the Board of Immigration Appeals is not a "court" within Rule 8.5(b)(1), so the court-rules branch does not control (¶ 9).

Q: How can a lawyer not admitted in the other state be governed by that state's rules?

A: The committee, following N.Y. State 815, treated a lawyer who is federally authorized to practice immigration law from an office in that state as "licensed to practice" there for the Rule 8.5(b)(2) analysis (¶ 11).

Q: Could the lawyer still be disciplined in New York?

A: Yes. The committee noted both states' Rule 8.5(a) allow discipline for the same conduct, and soliciting New York residents would bring the conduct under New York's rules via Rule 7.3(i) (¶¶ 11, 14).

Background and rules framework

The opinion interprets New York Rule 8.5 (disciplinary authority and choice of law), Rule 1.15(b) (trust-account location), Rule 1.0(w) (definition of "tribunal"), and Rule 7.3(i) (solicitation by lawyers not admitted in New York), corresponding to ABA Model Rules 8.5, 1.15, 1.0, and 7.3. The analysis turns on Rule 8.5(b)'s two branches and on treating a federally authorized immigration practice as a license to practice in the state where the lawyer works.

Citations and references

Rules of Professional Conduct:

  • MR 8.5 / NY RPC 8.5(a), (b) (disciplinary authority; choice of law)
  • MR 1.15 / NY RPC 1.15(b) (location of the attorney trust account)
  • MR 1.0 / NY RPC 1.0(w) (definition of "tribunal")
  • MR 7.3 / NY RPC 7.3(i) (solicitation of New York residents)

Statutes:

  • 8 C.F.R. §§ 1001.1(f), 1292.1(a)(1) (federal authorization to represent parties in immigration matters)

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 authorized to act in another jurisdiction is "licensed to practice" there for choice of law
  • N.Y. State 863 (2011): a lawyer licensed elsewhere practicing immigration law in New York

See also

Source