Ezel / Ethics Opinions / NYSBA
NYSBA 2016-04-18

Must a New York lawyer report an out-of-state lawyer who appeared in New York courts without being admitted or authorized here?

Short answer: Yes, if the lawyer actually knows of the violation. The opinion concludes Rule 8.3 reaches a non-New York lawyer who practices in New York without authorization, and such unauthorized appearance ordinarily raises a substantial question of honesty, trustworthiness, or fitness; the duty applies even if the conduct has stopped, but a mere good-faith belief short of knowledge does not trigger it.
Currency note: this opinion is from 2016
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 Not binding precedent.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 1091: Reporting an out-of-state lawyer's unauthorized practice

Short answer: A New York lawyer who knows that a lawyer admitted only in another state appeared in New York courts without being admitted or authorized here must report it, because such unauthorized appearance ordinarily raises a substantial question as to honesty, trustworthiness, or fitness; the duty applies even if the conduct has ceased, but a good-faith belief short of actual knowledge does not trigger 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 New York-admitted lawyer believed that an individual admitted only in another state had appeared in New York courts without being admitted or authorized here, and believed the conduct was no longer occurring (¶ 1). The inquiry asked whether the lawyer had a duty to report it, and whether it mattered that the conduct had stopped (¶ 2).

The committee analyzed the question under Rule 8.3 (reporting professional misconduct) and Rule 5.5 (unauthorized practice). It first addressed whether "another lawyer" in Rule 8.3 reaches a lawyer not admitted in New York. Observing that the term "lawyer" is undefined and means different things in different Rules, the committee concluded that the self-regulation rationale of Comment [1] to Rule 8.3 applies equally to a non-New York lawyer who engages in misconduct in New York, so "another lawyer" includes such a person (¶¶ 7-11). That reading is reinforced by 22 NYCRR § 523.3, which subjects out-of-state lawyers practicing temporarily under Part 523 to New York's Rules and disciplinary authority (¶¶ 12-13).

The committee then set out two independent conditions for the reporting duty. First, the inquirer must "know" of the violation, meaning actual knowledge, which may be inferred from circumstances under Rule 1.0(k); a good-faith belief short of knowledge is not enough (¶ 15). Second, the inquirer must conclude that the conduct raises a substantial question as to the other lawyer's honesty, trustworthiness, or fitness. The committee reasoned that appearing in a New York court without general admission, pro hac vice admission, or temporary-practice authorization ordinarily evinces a lack of trustworthiness or fitness, since every lawyer knows or should know that appearing in court requires authorization, and cited Rule 3.4(c) (a lawyer shall not disregard a tribunal's standing rule) (¶ 16). Finally, the inquirer's belief that the violation has ceased is immaterial, because an apparently isolated violation may indicate a pattern (¶ 17). Having resolved the question under Rule 8.3, the committee did not reach whether Rule 5.5 independently required a report (¶ 18).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that the Rule 8.3 reporting obligation does not turn on whether the offending lawyer is admitted in New York; it turns on actual knowledge plus a substantial-question judgment. The opinion treats unauthorized court appearances as ordinarily clearing the substantial-question threshold, and makes clear that the duty survives the conduct's cessation. It also draws a sharp line between knowledge and belief: the inquirer's own framing ("believes") would not, without more, trigger the duty, because Rule 8.3 requires actual knowledge.

Common questions

Q: Does Rule 8.3 require reporting a lawyer who is not admitted in New York?

A: Yes. The opinion concludes "another lawyer" in Rule 8.3 includes a lawyer admitted only elsewhere who commits misconduct in New York, supported by the self-regulation rationale and by 22 NYCRR § 523.3 (¶¶ 11-12).

Q: Is a belief that the lawyer practiced unlawfully enough to require a report?

A: No. The opinion concludes the duty requires actual knowledge under Rule 1.0(k), though knowledge may be inferred from circumstances; a good-faith belief falling short of knowledge does not trigger it (¶ 15).

Q: Does it matter that the unauthorized practice has already stopped?

A: No. The opinion concludes that if the inquirer has the requisite knowledge and substantial-question judgment, the belief that the violation has ceased is immaterial (¶ 17).

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 8.3 (reporting professional misconduct) together with Rule 5.5(a) and (b) (unauthorized practice and aiding it) and Rule 3.4(c) (compliance with a tribunal's rules), corresponding to ABA Model Rules 8.3, 5.5, and 3.4. The knowledge standard is supplied by Rule 1.0(k). The committee situates the analysis against the New York Court of Appeals' Part 523 temporary-practice regime (effective December 30, 2015) and the unauthorized-practice provisions of Judiciary Law §§ 478, 484, and 485-a, noting that whether conduct constitutes the unauthorized practice of law is a legal question outside the committee's jurisdiction.

Citations and references

Rules of Professional Conduct:

  • MR 8.3 / NY RPC 8.3 (reporting professional misconduct)
  • MR 5.5 / NY RPC 5.5(a), (b) (unauthorized practice; aiding it)
  • MR 3.4 / NY RPC 3.4(c) (disregarding a tribunal's standing rule)
  • NY RPC 1.0(k) (definition of "knowingly")

Statutes and court rules:

  • N.Y. Judiciary Law §§ 478, 484, 485-a (unauthorized practice)
  • 22 NYCRR Part 523; § 523.3 (temporary practice by out-of-state lawyers; discipline)

Other opinions cited:

  • N.Y. State 864 (2011): a lawyer admitted in another state is not a "nonlawyer" for Rule 5.4(a)
  • N.Y. State 806 (2007): multijurisdictional partnerships and letterhead

See also

Source