Can a New York lawyer affiliate and share fees with a lawyer admitted only out of state who lives in New York and practices immigration law from a New York office?
NYSBA Ethics Opinion 1254: Affiliating With a Lawyer Not Admitted in New York
Short answer: The opinion concludes that a New York lawyer may affiliate and share fees with an out-of-state lawyer who resides in New York and practices immigration law there only if neither the lawyers nor their firm would be engaged in the unauthorized practice of law, which is a question of law the committee cannot answer, and the lawyers' communications with clients and the public are not misleading.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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
The inquirer is a New York-licensed personal injury lawyer who lives outside New York. He proposed to affiliate with a lawyer (the Immigration Lawyer) admitted only outside New York, who lives in New York and practices only immigration law from a New York office. The inquirer would practice under the Immigration Lawyer's firm name and address, and the Immigration Lawyer's staff would also help the inquirer with personal injury matters.
The opinion explains that whether an out-of-state lawyer practicing only immigration law in New York is engaged in the unauthorized practice of law is a question of law, governed by Judiciary Law section 484, that lies outside the committee's jurisdiction (citing N.Y. State 863 (2011)). The opinion identifies two unauthorized-practice questions it cannot answer but comments on generally.
The first is whether the Immigration Lawyer, who resides and practices in New York but is not admitted there, is engaged in the unauthorized practice of law. The opinion reasons that if he is, the inquirer may not affiliate with him, because doing so would impermissibly assist an ongoing violation of New York law under Rule 5.5(b) (citing N.Y. State 1160 (2019) and N.Y. 801 (2006)). The second is whether New York's unauthorized-practice law would permit the Immigration Lawyer's firm to represent clients in state-law matters such as personal injury, given that the firm as an entity, or the Immigration Lawyer's supervision of the staff assisting on those matters, could implicate the unauthorized-practice law.
Assuming the inquirer would not thereby assist the unauthorized practice of law, the opinion concludes the inquirer may affiliate and practice under the Immigration Lawyer's firm name, subject to Rule 7.1(a), which forbids false or misleading advertising, and Rule 7.5(a), governing firm letterhead. The opinion states that communications must make clear the Immigration Lawyer is not admitted in New York and may perform only the work excepted from the unauthorized-practice law, and that the letterhead must not mislead about the nature and limits of the firm's practice.
In practice
Under this opinion, the affiliation is permitted only on two conditions: that neither the lawyers nor the firm is engaged in the unauthorized practice of law, and that the firm's communications and letterhead are not misleading about who is admitted in New York and the limits of the firm's practice. Per the opinion, the unauthorized-practice question is one of law the committee does not decide, so the inquirer must resolve it before relying on the affiliation.
Common questions
Q: Will the committee decide whether the out-of-state immigration lawyer is engaged in the unauthorized practice of law?
A: Per the opinion, no. The committee states that the unauthorized practice of law is governed by Judiciary Law section 484 and is a question of law beyond its jurisdiction.
Q: What happens to the affiliation if the Immigration Lawyer is found to be engaged in the unauthorized practice of law?
A: Per the opinion, the inquirer may not affiliate, because doing so would impermissibly assist the Immigration Lawyer's ongoing violation of New York law, contrary to Rule 5.5(b).
Q: Can the New York lawyer practice under the Immigration Lawyer's firm name and address?
A: Per the opinion, yes, if the affiliation is otherwise lawful, but the communications and letterhead must comply with Rules 7.1(a) and 7.5(a) by making clear the Immigration Lawyer is not admitted in New York and not misleading clients or the public about the firm's practice.
Background and rules framework
The opinion interprets New York Rule 5.5(b) (a lawyer shall not aid a nonlawyer in the unauthorized practice of law), Rule 7.1(a) (false or misleading advertising), and Rule 7.5(a) (firm names and letterhead). These correspond to ABA Model Rules 5.5, 7.1, and 7.5. The opinion treats the underlying unauthorized-practice question as one of law under Judiciary Law section 484, which it does not decide.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 5.5(b), 7.1(a), 7.5(a)
- ABA Model Rules 5.5, 7.1, 7.5 (analogues)
Statutes:
- New York Judiciary Law section 484 (unauthorized practice of law)
Other opinions cited:
- N.Y. State 863 (2011): out-of-state lawyer practicing only immigration law in New York; unauthorized practice is a question of law
- N.Y. State 1160 (2019): no affiliation or fee-sharing with an out-of-state lawyer whose work would be unauthorized practice
- N.Y. 801 (2006): no partnership where the out-of-state lawyer's New York work is unauthorized practice
See also
- ISBA Op. 25-01: Non-IL Lawyer Advising IL Business
- CA COPRAC Op. 2023-208: Remote-Practice Ethics
- NYSBA Ethics Op. 1290: Foreign Law-Firm Partners in NY LLP
Source
- Landing page: https://nysba.org/ethics-opinion-1254/