Can a New York lawyer work for a licensed foreign legal consultant, or form a partnership with a foreign lawyer such as a Japanese bengoshi?

Plain-English summary

The committee answered two questions. On the first, it concluded a New York lawyer may serve as an employee of a legal consultant licensed under Part 521 of the Rules of the Court of Appeals, so long as the consultant acts within the scope of that license. Because a licensed legal consultant's authorized practice is not the unauthorized practice of law, DR 3-101(A) (aiding a nonlawyer in the unauthorized practice of law) is not violated; indeed section 521.3(e) contemplates that a New York lawyer will at times supply the advice on New York or U.S. law on which the consultant relies. If the consultant rendered services beyond what the rules authorize, however, the New York lawyer could not aid that conduct.

On the second question, the committee concluded a New York lawyer may partner with a Japanese lawyer (bengoshi) insofar as the arrangement conforms to New York substantive law and to Japan's ethical codes and laws. It built on N.Y. State 542 (1982), which allowed a partnership with a British solicitor: although DR 3-103(A) bars partnership with a nonlawyer, DR 2-102(D) recognizes partnerships among lawyers licensed in different jurisdictions, and that includes lawyers licensed abroad. The committee stressed that foreign licensure alone is not enough; the test is whether the foreign lawyer's training and applicable ethical standards are comparable, the concern being that an incomparable partner could compromise the New York lawyer's duties, in particular confidentiality under DR 4-101. Reviewing the Japanese system, the committee found the educational requirements no less rigorous and the professional-conduct standards sufficiently similar, with attorney-client privilege and conflict duties established by statute. It directed any New York lawyer entering such a partnership to undertake an independent inquiry and to ensure that participation does not compromise the lawyer's ethical obligations (EC 1-8). Both questions were answered in the affirmative, subject to those qualifications.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on partnership with nonlawyers, multijurisdictional practice, and assisting the unauthorized practice of law have since been revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a New York lawyer be employed by a foreign legal consultant?

A: Under this opinion, yes, if the consultant is duly licensed under Part 521 and acts within the authorized scope, because the consultant's authorized practice is not the unauthorized practice of law.

Q: Can a New York lawyer partner with a Japanese lawyer?

A: Yes, where the Japanese lawyer's training and ethical standards are comparable, subject to an independent inquiry confirming the partnership will not compromise the New York lawyer's obligations.

Q: Is foreign licensure by itself enough to allow the partnership?

A: No. The committee held the test is comparability of training and ethical standards, not the bare fact of foreign licensure, with confidentiality a particular concern.

Background and rules framework

The opinion interpreted DR 3-101(A) (aiding the unauthorized practice of law), DR 3-103(A) (partnership with a nonlawyer), and DR 2-102(D) (partnerships among lawyers of different jurisdictions), along with EC 1-8, of New York's former Code and Part 521 of the Rules of the Court of Appeals. The closest Model Rule analogues are Rule 5.4 (professional independence) and Rule 5.5 (multijurisdictional practice). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 5.4 (professional independence of a lawyer)
• MR 5.5 (multijurisdictional practice of law)
• NY DR 3-101(A); DR 3-103(A); DR 2-102(D); EC 1-8

Other opinions cited:

• N.Y. State 542 (1982): partnership with a British solicitor permissible given comparable standards
• N.Y. City 81-72: foreign lawyer's status turns on comparable training and ethical requirements

See also

• NY State Bar Op. 658: Partnership with a foreign Swedish law firm
• NY State Bar Op. 762: Supervising foreign-licensed lawyers
• NY State Bar Op. 1290: Multijurisdictional-practice partnership with a non-U.S. lawyer

Source

• Landing page: https://nysba.org/opinion-646/