Can the New York office of a multi-state law firm be run by a non-partner New York lawyer supervised by an out-of-state partner who is not admitted in New York?

Plain-English summary

A New York-admitted lawyer planned to join a two-person firm with offices in New York and New Jersey as an associate or of counsel. The lawyer would manage the New York office on a salary but would not share in the firm's overall profits and liabilities; the firm would practice under the name of the New Jersey lawyer, who is not admitted in New York. The committee re-examined its 1971 conclusion in N.Y. State 175, which had required a multi-state firm practicing in New York under a name including out-of-state lawyers to have an active partner admitted in New York.

Two developments led the committee to abandon that requirement. First, amendments to DR 1-104(A) and (C) in 1996 regulate law firms as entities and impose on the firm itself the duty to ensure its New York lawyers comply with the disciplinary rules and to adequately supervise their work; nothing in those rules requires a New York partner. The committee notes a New York lawyer may practice as a sole practitioner with complete responsibility for the firm's ethical compliance, so there is no obvious reason the same lawyer could not be responsible for the New York office of an out-of-state firm even as an associate. Second, in the 37 years since Opinion 175, firms based outside the state (and outside the country) practicing in New York under their national or worldwide names have become familiar, undercutting the earlier "franchising" and misleading-name concerns.

The committee concludes the Code does not itself require a New York-admitted partner so long as the New York office is staffed by one or more lawyers admitted and in good standing in New York. It cautions, however, that its jurisdiction is limited to the Code: it expresses no view on New York Judiciary Law section 478 (unauthorized practice), and it flags the Court of Appeals' statement in New York Criminal and Civil Courts Bar Association v. Jacoby & Meyers (1984) that a multi-state firm may practice in New York if it has an active partner admitted in New York. If that statutory requirement makes the arrangement illegal, the committee notes, it would also be unethical.

In practice

The opinion holds, under the former Code as it stood at the time, that DR 1-104(A) and (C) place supervisory and compliance duties on the firm as an entity and on supervising lawyers regardless of partner status, so the Code does not require a multi-state firm's New York office to have a New York-admitted partner. The committee overrules N.Y. State 175 and permits a New York-admitted associate or of counsel to manage the office under the supervision of an out-of-state partner. It limits its conclusion to the Code and expressly declines to resolve whether Judiciary Law section 478, as construed in Jacoby & Meyers, independently requires a New York partner; if it does, the committee states the conduct would also be unethical. It also notes the firm's letterhead and advertisements must not imply that the associate or of counsel staffing the New York office is a partner.

Common questions

Q: Does a multi-state law firm need a New York partner to staff its New York office?

A: Not under the Code, per this opinion. The committee overrules N.Y. State 175 and concludes the Code does not require a New York-admitted partner; the office may be run by a New York-admitted associate or of counsel supervised by an out-of-state partner.

Q: Who is responsible for the New York office's ethical compliance if there is no New York partner?

A: The committee explains that under DR 1-104(A) and (C) the firm as an entity must ensure its New York lawyers conform to the disciplinary rules and adequately supervise their work, and that a supervising lawyer's responsibility under DR 1-104(D)(2) turns on supervisory authority, not partner status.

Q: Does the opinion resolve the unauthorized-practice question?

A: No. The committee limits itself to the Code and expressly declines to interpret New York Judiciary Law section 478; it cautions that if the Jacoby & Meyers statutory proviso requiring a New York partner applies, conduct that is illegal under it would also be unethical.

Background and rules framework

The opinion interprets the former New York Lawyer's Code provisions on firm responsibility and supervision, DR 1-104(A) and (C) (analogues of ABA Model Rule 5.1), and DR 2-102(D) on multi-jurisdictional firm names (analogue of Model Rule 7.5). It situates the analysis against New York Judiciary Law section 478 (unauthorized practice, the subject of Model Rule 5.5) and the Court of Appeals' decision in Jacoby & Meyers, while noting the committee's jurisdiction extends only to the Code.

Citations and references

Rules of Professional Conduct:

• MR 5.1 (firm and supervisory responsibility)
• MR 7.5 (firm names and multi-jurisdictional practice)
• MR 5.5 (unauthorized practice of law)
• Former Code DR 1-104(A), (C); DR 2-102(D); EC 1-8

Statutes:

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

Cases:

• New York Criminal and Civil Courts Bar Association v. Jacoby & Meyers, 61 N.Y.2d 130 (1984), multi-state firm may practice in New York with an active partner admitted in New York
• Rosenberg v. Johns-Manville Sales Corp., 99 Misc. 2d 554 (Sup. Ct. N.Y. County 1979), earlier trial-court requirement of a New York partner

Other opinions cited:

• N.Y. State 175 (1971): overruled by this opinion
• N.Y. State 762 (2003): firm rules apply to a firm with a New York office and at least one affiliated New York lawyer

See also

• NY State Bar Op. 815: Choice of ethics rules for a New York lawyer practicing abroad
• NY State Bar Op. 1023: Of counsel to an out-of-state firm with a trade name
• NY State Bar Op. 1041: Foreign practice and nonlawyer partnership abroad

Source

• Landing page: https://nysba.org/ethics-opinion-814/