Ezel / Ethics Opinions / NYSBA
NYSBA November 17, 2006

Can a New York lawyer form a partnership with an attorney admitted only in another state who would work exclusively from a New York office on New York matters?

Short answer: Not where the out-of-state attorney's New York work would be unauthorized practice. The committee concludes such a partnership violates DR 3-101(A); and if the out-of-state attorney instead limited herself to non-lawyer tasks, the fee split would violate DR 3-102(A).

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This page answers the general question as of 2006. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2006
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.
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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 on this page) is the authoritative source for any reliance.

Plain-English summary

A New York lawyer planned to form a partnership with an attorney admitted in another state but not in New York. The firm would have offices only in New York and work exclusively on New York matters; the out-of-state attorney would handle office work, paperwork, and client meetings under the New York lawyer's supervision, while the New York lawyer handled all court appearances and retained ultimate responsibility, and the two would split fees. The committee was asked whether the partnership is proper.

The committee notes that, as a threshold matter, a New York lawyer may form a partnership with a lawyer admitted only in another jurisdiction (N.Y. State 175). The problem here is the unauthorized practice of law: under DR 3-101(A), a lawyer may not aid a non-lawyer in the unauthorized practice of law. Because unauthorized practice is governed by statute (Judiciary Law section 478), not the ethics code, the committee does not decide which specific acts by the out-of-state attorney would constitute unauthorized practice, but it notes a New York federal court has held that preparing legal documents for a layperson, in the business of doing so, is practicing law.

The committee frames the result as a dilemma. If the out-of-state attorney is engaged in the unauthorized practice of law in New York, the New York lawyer violates DR 3-101(A) by partnering with her. If, instead, the out-of-state attorney limited her activities to those a non-lawyer such as a paralegal could perform, then the New York lawyer would violate DR 3-102(A) by sharing fees with a non-lawyer. The committee expresses no opinion on whether the same conclusions would apply to partnerships with an out-of-state lawyer, such as a retired lawyer, who is not working in New York.

In practice

The opinion holds, under the former Code as it stood at the time, that a New York lawyer may not partner with an attorney admitted only elsewhere where that attorney's New York work would be the unauthorized practice of law, because partnering would aid unauthorized practice in violation of DR 3-101(A). It adds that if the out-of-state attorney instead performed only non-lawyer tasks, the fee split would violate the bar on sharing fees with a non-lawyer under DR 3-102(A). The committee leaves the underlying unauthorized-practice question to Judiciary Law section 478 and the courts, and expresses no view on partnerships with an out-of-state lawyer not working in New York.

Common questions

Q: Can a New York lawyer partner with a lawyer admitted only in another state?

A: In general yes, per the committee (citing N.Y. State 175), but not where the out-of-state lawyer's New York work would be unauthorized practice; partnering in that situation violates DR 3-101(A).

Q: What if the out-of-state attorney only does paralegal-type work?

A: Then the committee concludes the New York lawyer would violate DR 3-102(A), which bars sharing legal fees with a non-lawyer, because the out-of-state attorney would be functioning as a non-lawyer in New York.

Q: Does the committee decide what counts as unauthorized practice?

A: No. The committee notes unauthorized practice is governed by Judiciary Law section 478 rather than the ethics code, so it does not opine on which specific acts constitute unauthorized practice.

Background and rules framework

The opinion interprets the former Code's bar on aiding unauthorized practice, DR 3-101(A) (an analogue of ABA Model Rule 5.5), and the bar on sharing fees with a non-lawyer, DR 3-102(A) (an analogue of Model Rule 5.4(a)). It situates the analysis against New York Judiciary Law section 478 (unauthorized practice), which the committee notes lies outside its jurisdiction.

Citations and references

Rules of Professional Conduct:

  • MR 5.5 (unauthorized and multijurisdictional practice)
  • MR 5.4(a) (sharing legal fees with a non-lawyer)
  • Former Code DR 3-101(A); DR 3-102(A)

Statutes:

  • New York Judiciary Law section 478 (unauthorized practice of law)

Cases:

  • Servidone Construction Corp. v. St. Paul Fire & Marine, 911 F. Supp. 560 (N.D.N.Y. 1995), out-of-state attorney's New York legal services were unauthorized practice despite a partnership with a New York lawyer

Other opinions cited:

  • N.Y. State 175 (1971): a New York lawyer may partner with a lawyer admitted only in another jurisdiction

See also

Source

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