Can a Texas lawyer run an out-of-state firm's new Texas office as its only lawyer if she is an associate, not a partner, and the firm's partners are not licensed in Texas?
Texas Ethics Opinion 686: An Out-of-State Firm's Texas Office Staffed by a Non-Partner
Short answer: Per the Committee, an out-of-state firm may open a Texas office whose only resident lawyer is a non-partner associate, provided that lawyer qualifies as a "firm lawyer" under Opinion 577 and is given responsibility and authority over the firm's Texas practice, and the firm maintains a Texas resident agent for service of process.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary 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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion considers a California professional corporation, none of whose lawyers are licensed in Texas, that wants to open a Texas office and has offered a Texas lawyer a position as an associate who, at least initially, would be the only lawyer in that office and responsible for legal services under Texas law. The Committee revisits its earlier Opinions 400 and 319, which (under former rules) allowed an out-of-state firm to operate a Texas office under its out-of-state name if it had a resident partner licensed in Texas and disclosed its lawyers' jurisdictional limitations to the public.
The Committee concludes the result is the same under the current rules even when the only resident Texas lawyer is an associate rather than a partner. Rule 7.01(b) lets a firm with offices in more than one jurisdiction use the same name in each, subject to noting jurisdictional limitations, and says nothing about the required organizational structure of the Texas office; the rules do not prescribe specific forms of organization for law firms (Opinion 618). The Committee reasons that the "resident partner" language in the older opinions arose from their facts and from predecessor rules addressing the formation of partnerships, and that Opinion 319 itself spoke of needing only a "resident Texas licensed lawyer."
The Committee identifies the real concern as accountability: ensuring a Texas-licensed lawyer on whom the public, clients, and courts can rely for compliance with Texas ethics standards. That accountability can be created without a resident partner, provided the associate or other non-partner (1) qualifies as a "firm lawyer" reasonably considered to be "in" the firm under the factors in Opinion 577, and (2) is given the responsibility and authority to make decisions about the firm's Texas practice, with the firm also designating a resident agent for service of process. The Committee notes this aligns with out-of-state opinions from Arizona, Rhode Island, and New Jersey, and with Comment 5 to Rule 5.05, which discourages unreasonable territorial limitations on a client's choice of lawyer.
In practice
Under this opinion, and under the Texas rules as they stood at the time, an out-of-state firm may open a Texas office whose only resident lawyer is a non-partner associate. The opinion holds the associate must (1) qualify as a "firm lawyer" reasonably considered to be "in" the firm under the factors in Opinion 577, and (2) be given the responsibility and authority to make decisions about the firm's practice of law in Texas, and the firm should maintain a Texas resident agent for service of process. The opinion also reflects the continuing Rule 7.01(b) requirement that public representations note the lawyers' jurisdictional limitations.
Common questions
Q: I'm a Texas associate. Can I be the only lawyer running an out-of-state firm's Texas office?
A: Per Opinion 686, yes. The Committee concludes a non-partner may be the only resident Texas lawyer, provided you qualify as a "firm lawyer" under Opinion 577 and are given responsibility and authority over the firm's Texas practice, and the firm maintains a Texas resident agent for service of process.
Q: Doesn't the firm need a resident partner in Texas?
A: No. The Committee reads its older opinions' "resident partner" language as arising from their facts and from predecessor partnership rules, and concludes a partner is not required so long as the accountability concern is satisfied by an associate with authority over the Texas practice.
Q: Can the firm use its out-of-state name on the Texas office?
A: The opinion applies Rule 7.01(b), under which a firm with offices in more than one jurisdiction may use the same name in each, so long as the jurisdictional limitations of its lawyers are noted in public representations.
Q: What does "responsibility and authority" over the Texas practice mean here?
A: The Committee ties it to creating accountability: the resident lawyer must be one on whom the public, clients, and courts can rely for compliance with Texas ethics standards, which requires that the associate be given authority to make decisions about the firm's practice of law in Texas.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 7.01(b) (a multi-jurisdiction firm may use the same name in each jurisdiction, subject to noting jurisdictional limitations; ABA Model Rule 7.5) and Rule 5.05 and its Comment 5 (multijurisdictional practice and territorial limitations; ABA Model Rule 5.5). It relies on the Committee's Opinions 577 (when a lawyer is "in" a firm), 618 (no prescribed firm form), 400, and 319.
Citations and references
Rules of Professional Conduct:
- MR 7.5 (firm names and letterheads)
- MR 5.5 (unauthorized practice; multijurisdictional practice)
- Texas Disciplinary Rules 7.01(b), 5.05
Other opinions cited:
- Texas Professional Ethics Committee Opinion 577 (March 2007): factors for when a lawyer is a "firm lawyer" reasonably considered to be "in" a firm
- Texas Professional Ethics Committee Opinion 618 (June 2012): the rules do not prescribe specific forms of organization for law firms
- Texas Professional Ethics Committee Opinions 400 (July 1981) and 319 (October 1966): out-of-state firms operating a Texas office
- Out-of-state opinions: Arizona Op. 96-08 (1996), Rhode Island Op. 90-20 (1990), New Jersey Op. 550 (1985)
See also
- TX Ethics Op. 704: A Texas Lawyer Joining a D.C. Firm With a Nonlawyer Partner
- TX Ethics Op. 663: Using a Verein Name as a Texas Firm Name
- TX Ethics Op. 640: Assumed Firm Name Including an Employed Lawyer
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-686/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_686.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
May a Texas lawyer practice law as an associate or other non-partner firm lawyer, and the only lawyer in the Texas office, of a law firm whose partners are only licensed to practice law outside of Texas?
STATEMENT OF FACTS
Smith Jones P.C. is a law firm organized as a professional corporation in California (the "Firm"). The Firm has multiple offices in California but does not yet have an office in Texas. None of the Firm's lawyers are licensed to practice law in Texas. All of the Firm's partners, including named partners Smith and Jones, are licensed in California alone.
The Firm intends to open an office in Texas to serve existing clients in California and Texas. The Firm has offered a position to a Texas lawyer to serve as an associate attorney in its soon-to-be-opened Texas office. At least initially, the Texas associate will be the only lawyer in that office and will be responsible for any legal services rendered under Texas law.
DISCUSSION
The Committee has previously addressed similar questions about whether out-of-state law firms may open offices in Texas. See, e.g., Professional Ethics Committee Opinion 400 (July 1981) (applying former rules to question of whether out-of-state law firm may use same firm name in Texas); Opinion 319 (October 1966) (same). In these opinions, the Committee determined that an out-of-state law firm may operate a Texas office under the name it uses in another state provided that: (1) the firm has a resident partner licensed in Texas, and (2) all representations of the firm made to the public identify the states in which the members of the firm are licensed to practice. See id.
The question here is whether the result is the same under the current Texas Disciplinary Rules of Professional Conduct where the law firm's only lawyer resident in Texas is not a partner, but, rather, is an associate or other non-partner firm lawyer. The Committee concludes the answer is yes and that the Firm may open an office in Texas under the circumstances described above. For purposes of this opinion, the term "partner" is broader than the definition of partner in the Terminology section of the Rules and includes not only a partner or shareholder but also a lawyer who is a member of a PLLC or a principal in a firm, or who holds another similar position in the firm..
Rule 7.01(b) provides that "[a] firm with offices in more than one jurisdiction may use the same name in each jurisdiction," so long as the jurisdictional limitations of its lawyers are noted in public representations. Comment 2 to Rule 7.01 notes that "[t]he practice of law firms having offices in more than one state is commonplace." Rule 7.01(b) says nothing about the required organizational structure of an out-of-state firm's office in Texas. Cf. Opinion 618 (June 2012) ("The Texas Disciplinary Rules of Professional Conduct do not prescribe specific forms of organization for law firms."). Thus, the Rules do not expressly prohibit an out-of-state firm from operating in Texas when the only resident lawyer is an associate.
To the extent the Committee's earlier opinions appeared to require a resident partner in Texas, the Committee believes that such language arose from the fact patterns presented; the opinions did not address whether the result would have been different if the resident lawyer had been an associate. Indeed, Opinion 319 speaks in more lenient terms, concluding at one point that the firm need only have a "resident Texas licensed lawyer" (emphasis added). Furthermore, the predecessors to Rule 7.01(b) directly addressed the "formation of partnerships for the practice of law," which may also explain the use of the term "resident partner" in the earlier opinions. See Opinion 400 (interpreting former DR 2-102(D)); Opinion 319 (interpreting former Canon 30). Rule 7.01(b) says nothing about the formation of "partnerships." Instead, Rule 7.01(b) speaks only in terms of what is required for a "firm with offices in more than one jurisdiction."
Given these distinctions, the Committee finds that the underlying rationale of its earlier opinions can be satisfied even if the only resident Texas lawyer is an associate or other non-partner firm lawyer. See Opinion 577 (March 2007) (providing factors for determining when a lawyer is a "firm lawyer" reasonably considered to be "in" a law firm).
The primary concern in Opinions 319 and 400 was to ensure that an out-of-state firm operating in Texas would respect and uphold the ethical rules that govern Texas attorneys. The Committee thus concluded that the out-of-state firm should maintain a resident agent for service of process and have a resident partner in Texas to "insure the same degree of commitment and obligation to the citizens of Texas . . . that is demanded of resident practitioners" and to create "an accountability to the general public by such firms." Opinion 400.
The Committee concludes that it is unnecessary for the resident Texas lawyer to be a partner in order to create this kind of accountability, provided, however, that the associate or other non-partner lawyer: (1) qualifies as a "firm lawyer" reasonably considered to be "in" the law firm under the factors discussed in Opinion 577; and (2) is given the responsibility and authority to make decisions about the firm's practice of law in Texas. These requirements, along with the designation of a resident agent for service of process, will ensure that there is a Texas-licensed lawyer on whom the public, clients, and judicial authorities may rely for compliance with the ethical standards governing the practice of law in Texas.
This conclusion is consistent with guidance from other jurisdictions. See, e.g., Arizona Ethics Opinion 96-08 (Sept. 1996) (Arizona lawyer may be hired as an associate to operate Arizona office of out-of-state firm if associate is "fully responsible for the Arizona practice" and will therefore be "accountable to the public, disciplinary, judicial and licensing authorities"); Rhode Island Ethics Opinion 90-20 (May 1990) (Rhode Island lawyer may staff Rhode Island office of out-of-state firm if lawyer is either a partner or associate of the firm); see also New Jersey Ethics Opinion 550 (January 1985) (concluding that New Jersey rules "set forth no requirements that the New Jersey attorney, through whom an out-of-state firm opens a New Jersey office, must have the status of partner in the out-of-state firm").
This conclusion is also consistent with comment 5 to Rule 5.05, which states: "In furtherance of the public interest, lawyers should discourage regulations that unreasonably impose territorial limitations upon the right of a lawyer to handle the legal affairs of a client or upon the opportunity of a client to obtain the services of a lawyer of his or her choice." The Committee believes the requirements discussed above strike the appropriate balance in this regard.
CONCLUSION
A Texas lawyer may practice law as an associate or other non-partner firm lawyer, and the only lawyer in the Texas office, of an out-of-state law firm, provided that the associate or other non-partner lawyer: (1) qualifies as a "firm lawyer" reasonably considered to be "in" the law firm under the factors discussed in Opinion 577; and (2) is given the responsibility and authority to make decisions about the firm's practice of law in Texas. The out-of-state law firm should also have a resident agent for service of process in Texas.
Tex. Comm. On Professional Ethics, Op. 686 (2020)