Which ethics rules govern a New York lawyer who works mainly abroad, doing work that is law practice but without being admitted in that foreign country?

Plain-English summary

A New York-admitted lawyer was considering joining a law firm in a foreign country. That jurisdiction would let the lawyer do work amounting to the practice of law without being formally admitted there (so the lawyer could not, for example, appear in its courts), and its ethics code for admitted attorneys would not apply to the lawyer. The committee was asked which ethics rules govern.

The committee works through DR 1-105. Under DR 1-105(A), a New York-admitted lawyer is always subject to New York's disciplinary authority wherever the lawyer practices, but DR 1-105(B) directs which jurisdiction's rules New York will apply in exercising that authority. DR 1-105(B)(1) applies the court's rules for conduct in a proceeding the lawyer is admitted before; since this lawyer cannot appear in the foreign court, that provision does not apply. For other conduct, DR 1-105(B)(2)(b) applies the rules of the admitting jurisdiction in which a multi-jurisdiction lawyer principally practices, unless the conduct's predominant effect is clearly in another jurisdiction of admission. The committee reads "licensed to practice" to include not only formal licensing but also less formal authorization to do law-practice activities abroad; so long as the activities are lawful where performed, the lawyer is "licensed to practice" there and that jurisdiction is an "admitting jurisdiction." If the lawyer principally practices there and the conduct's predominant effect is not in New York, the foreign rules apply.

A contrary reading would produce anomalies, the committee notes, such as requiring a lawyer living and working abroad with foreign clients and foreign-currency funds to keep funds in a New York bank account with only New York-lawyer signatories under DR 9-102. The result may let the lawyer take on representations New York would forbid (for example, proceeding against a current client in an unrelated matter, which the foreign rules might allow), and because the foreign rules permit it, it would not surprise those clients. The committee adds that certain New York rules that apply even when a lawyer is not practicing law, such as DR 1-102(A)(3)'s bar on illegal conduct reflecting on honesty, trustworthiness, or fitness, apply wherever the lawyer practices. It expressly does not address what imputation rules would apply in a firm with lawyers both in New York and abroad.

In practice

The opinion holds, under the former Code as it stood at the time, that a New York lawyer authorized to do law-practice work in a foreign jurisdiction is "licensed to practice" there for DR 1-105(B)(2)(b) purposes, so the foreign jurisdiction's rules govern the lawyer's conduct when the lawyer principally practices there and the conduct's predominant effect is not in New York. The committee qualifies this in two ways: New York retains disciplinary authority over the lawyer under DR 1-105(A), and a small set of New York rules reaching non-practice conduct (such as the bar on illegal conduct reflecting on fitness) continue to apply everywhere. It leaves the cross-border imputation question undecided.

Common questions

Q: Which ethics rules govern a New York lawyer who works mainly in another country?

A: The foreign jurisdiction's rules generally govern. The committee concludes that under DR 1-105(B)(2)(b), if the lawyer principally practices in the foreign jurisdiction and the conduct's predominant effect is not in New York, that jurisdiction's rules apply, even though New York keeps disciplinary authority over the lawyer.

Q: Does it matter that the lawyer is not formally admitted in the foreign country?

A: No, where the lawyer is otherwise authorized. The committee reads "licensed to practice" to include less formal authorization to perform law-practice activities abroad, so long as those activities are lawful where performed, making that jurisdiction an "admitting jurisdiction" for the choice-of-rules analysis.

Q: Do any New York rules still follow the lawyer abroad?

A: Yes. The committee states that New York rules applying even when a lawyer is not practicing law, such as DR 1-102(A)(3)'s prohibition on illegal conduct that reflects on honesty, trustworthiness, or fitness, apply wherever the lawyer practices.

Background and rules framework

The opinion interprets DR 1-105 (disciplinary authority and choice of law, the analogue of ABA Model Rule 8.5), in particular DR 1-105(A) and DR 1-105(B)(1) and (B)(2)(b), together with DR 9-102 (preservation of client funds) and DR 1-102(A)(3) (illegal conduct reflecting on fitness, the area of ABA Model Rule 8.4), and references EC 1-12.

Citations and references

Rules of Professional Conduct:

• MR 8.5 (disciplinary authority; choice of law); MR 8.4 (misconduct)
• Former Code DR 1-105(A), (B)(1), (B)(2)(b); DR 9-102(B), (E); DR 1-102(A)(3); EC 1-12

See also

• NY State Bar Op. 835: Multijurisdictional practice by corporate counsel
• NY State Bar Op. 1275: Disciplinary authority and choice of law in immigration practice

Source

• Landing page: https://nysba.org/ethics-opinion-815/