May a New York lawyer working from France serve as of counsel to a New York firm?

Plain-English summary

The inquirer is admitted in New York and France, lives in France, and proposes to serve clients of a New York firm on New York and federal law while working entirely from France. The firm would supervise the lawyer's work and list the lawyer as of counsel on its professional notices.

The committee says New York Rule 5.5 does not bar that remote work absent a French prohibition or other regulation of the profession that the arrangement would violate. The firm and its supervisory lawyers remain responsible under Rule 5.1 for reasonable efforts to ensure compliance with the New York Rules. The committee lacks enough facts to decide whether the proposed level of supervision is reasonable.

An of-counsel title requires a close, regular and personal continuing relationship and must not mislead clients, courts or the public. The committee assumes that factual condition is met for its analysis. It declines to answer the separate legal question whether the firm's New York office satisfies Judiciary Law § 470 for this lawyer.

In practice

For the arrangement described, the opinion conditions its permissive conclusion on the relationship with the firm, regulation in France, and compliance with the New York Rules. The of-counsel title does not remove the firm's Rule 5.1 supervision duties.

Common questions

Q: Does working from France itself violate New York Rule 5.5?

A: The committee says no French prohibition or regulation is known to it, but Rule 5.5 would prohibit the work if it violated regulation of the legal profession where the lawyer physically practices.

Q: What relationship supports the of-counsel designation?

A: The opinion requires a close, regular and personal continuing relationship with the New York firm. Whether the proposed relationship meets that description is a factual question the committee assumes rather than decides.

Q: Does the firm's agreement to supervise establish adequate supervision?

A: No conclusion is reached on that point. The committee says it lacks enough facts to determine whether the degree of supervision would be reasonable under Rule 5.1(c).

Q: Does the opinion decide the New York office requirement for a nonresident lawyer?

A: No. The committee does not opine on questions of law and declines to decide whether the arrangement meets Judiciary Law § 470.

Background and rules framework

The opinion applies New York Rules 5.5, 5.1 and 7.5 to remote practice, supervision and the of-counsel title. It notes that Rule 8.5(a) subjects a New York admitted lawyer to New York disciplinary authority regardless of where the conduct occurs. Its rule list also cites Rule 1.10.

Citations and references

New York Rules of Professional Conduct:

• Rules 1.10(a) and (e), 5.1(a) through (c), 5.5, 7.5(a), and 8.5(a)

Statutes:

• New York Judiciary Law § 470, office requirement raised but not decided

Cases:

• Matter of Tatko v. McCarthy, 267 AD2d 583, 584 (3d Dept. 1999), cited on the office question
• In re Banco Popular N. Am., 2017 N.Y. Misc. LEXIS 30467 (Sup. Ct. N.Y., Westchester Cty., Sept. 19, 2017), cited on the office question

Other opinions cited:

• N.Y. State 936 (2012), of-counsel terminology
• N.Y. State 1137 (2017), close and continuing of-counsel relationship
• N.Y. City 2013-3 (2013), New York of-counsel lawyer practicing abroad
• ABA 495 (2020), remote practice and local regulation

See also

• NY State Bar Op. 1137: Of counsel designations
• NY State Bar Op. 936: Departing partner as counsel
• NY State Bar Op. 1301: Virtual office address

Source

• Landing page: NYSBA Ethics Opinion 1303