This article explores frictions that arise from law practice in a particular jurisdiction by attorneys not admitted in that jurisdiction. States of the Union (U.S.A.) are very protective about who can and cannot practice law in their jurisdiction. Expressly said reasons for protectionism include ethical, knowledge and control considerations. See e.g. 18 Intern. Ltd. v. Interstate Exp., Inc., 116 Misc.2d 66 (1982) (“Restriction placed on foreign attorneys is not due to monopolistic desire on part of state to keep state lawyers employed but rather because requirements for admission vary in each state, in addition to fact that state has greater power to impose sanction upon its own attorneys who do not keep within minimal ethical confines state has established.”). Model Rules of Professional Conduct reflect this protective notion in the Rule 5.5, which deals with unauthorized practice of law. The rule states that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” All of the States, and the District of Columbia, have adopted all or some of the model rules. Thus, a discussion below, while maybe focusing on specific states, can also be extended to many others.
Can a non-New York licensed attorney practice law of the state where that attorney is duly licensed, while physically remaining in New York State?
This issue pertains to, for example, a New Jersey licensed attorney, who lives in New York and practices only New Jersey law (never a New York law) from the office physically located in New York.
It has been a long standing principle that every jurisdiction can define what constitutes the practice of law in its territory. ABA Opinion 198 (1939) (“What constitutes unauthorized practice of the law in a particular jurisdiction is a matter for determination by the courts of that jurisdiction”). New York adopted a modified version of the Model Rules of Professional Conduct. New York rule concerning multijurisdictional practice states that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” N.Y. Jud. Law § 478 – Practicing or appearing as attorney-at-law without being admitted and registered – appears to regulate legal profession in New York. Among other things, the law states:
“It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, or to assume to be an attorney or counselor-at-law, or to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or attorney-at-law or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law or in any manner to advertise that he either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath.”
N.Y. Jud. Law § 478 is broadly written to include, for example, New Jersey attorneys practicing New Jersey law in New York state. The breadth of the statute came to light in Application of New York County Lawyers Ass’n 1956 opinion. The case dealt with the Mexican attorney who was a Mexican national and a non-U.S. citizen, practicing Mexican divorce law in New York. Mexican attorney argued that, as applied in N.Y. Jud. Law (§ 90) the term “law” only pertains to New York law. The court disagreed with the Mexican attorney, stating “[t]o be permitted to practice law in this State one must not only have the requisite knowledge but also must have the character and be subject to the discipline and ethics required of members of our Bar.” Id. at 730. This line of reasoning can be extended to the hypothetical New Jersey lawyer who is practicing New Jersey law out of New York state.
Arbitration may be an exception to the rule. In Prudential Equity Group, LLC v. Ajamie, court found that non-New York lawyers may participate in New York arbitrations without committing the unauthorized practice of law. There is yet another narrow exception carved out for non-New York licensed practitioners practicing federal law.
Can an attorney, admitted to New Jersey Bar, but not admitted to New York Bar, practice federal law in New York State?
The U.S. Supreme Court has held that “a lawyer may engage in conduct, otherwise prohibited by this Disciplinary Rule, where such conduct is authorized by preemptive federal legislation. Sperry v. State of Fla. ex rel. Florida Bar, 373 U.S. 379 (1963), on remand 159 So.2d 229. Sperry Court clarified the Supremacy Clause application in the context of state and federal law friction. If a federal agency permits a particular class of individual to engage in legal practice related to that agency, then the federal law displaces the state law. In the case of Sperry, Congress delegated the authority to the Commissioner of Patents to “prescribe regulations governing the recognition and conduct of * * * attorneys.” Id. at 384. And the Commissioner promulgated a rule permitting attorneys that meet certain requirements to practice before Patent Office. Id.
Like the patent law in Sperry, federal law displaced the state law in immigration area. Immigration law provides that aliens in immigration proceedings have the privilege of being represented, at no expense to the government, by counsel selected by the alien and authorized to practice. Section 292 of the Immigration and Nationality Act, 8 U.S.C. 1362. Federal regulations specify who may represent an alien in immigration proceedings and the criteria they must meet. (8 CFR, Part 1292). Among those mentioned are attorneys: “[a]liens may hire a licensed attorney who may charge or accept a fee for representing them in immigration proceedings. The attorney must be a member in good standing of the bar of the highest court of any state, possession, territory, or commonwealth of the United States, or the District of Columbia. Special rules apply for attorneys outside the United States” (emphasis added). 8 C.F.R. §1001.1(f) (2011). Thus, in the case of immigration law, an attorney admitted to New Jersey Bar, but not admitted to New York Bar, may practice immigration law in New York State.
It should be noted that Sperry’s federal displacement must take place, such as in the form of immigration or patent laws. If the federal law does not permit out-of-state attorney practice in a particular locality, then one should look to the state law of that particular jurisdiction. Furthermore, general statements about federal law practice (as opposed to e.g. immigration, patent, or admiralty law) are also prohibited. See e.g. Gould v. FL Bar (11th Cir. 2007) (affirming prohibition of general advertised statement “Practice Limited to Federal Administrative Law.”).
What about out-of-state attorneys, advising clients out-of-state, on the in-state law?
In other words, what about those out-of-state attorneys who advise about in-state law from the distance? Perhaps, a good starting point would be a Birbrower case, where a New York attorney did not get his fees for advising California client. However, in Birbrower, a New York attorney physically traveled to California. What if that New York attorney would have never set a foot? Birbrower discussed that as well, naming physical presence as one factor to be considered: “the practice of law ‘in California’ entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer’s activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law ‘in California.’ The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.” The court’s discussion is very much reminiscent of personal jurisdiction principles, i.e. whether there were enough sufficient contacts. This means that the issue today is note settled and would have to be decided on case-by-case and state-by-state basis. The safest thing to do today is to obtain a pro hac viche admission for an out-of-state attorney if the “contacts” are substantial enough.