Can a lawyer admitted in another U.S. state, but not in New York, serve as in-house general counsel for a New York corporation and keep an office in New York?

Plain-English summary

The question is whether a lawyer who is not admitted in New York, but is admitted and in good standing in another U.S. jurisdiction, may serve as general counsel for a corporation headquartered in New York and maintain a New York office for that purpose. The committee concludes the question is one of law beyond its jurisdiction, and declines to answer it.

The opinion explains that New York forbids the unauthorized practice of law (UPL) through Judiciary Law sections 476-a, 478, and 484, which generally bar maintaining a law practice or providing legal services in New York without a New York license or other authorization (such as pro hac vice admission). The scope of those provisions is a question of law that New York courts have addressed only occasionally, and the opinion surveys that case law, citing El Gemayel v. Seaman (phone calls advising a client of out-of-state proceedings were not, without more, the practice of law in New York) and Spivak v. Sachs (a California lawyer who became substantially involved in a New York client's divorce did engage in UPL). The case law suggests out-of-state lawyers do not commit UPL when performing "incidental and innocuous" legal work in New York while representing home-jurisdiction clients.

The opinion then identifies the decisive point: unlike most states, New York's Rules of Professional Conduct, effective April 1, 2009, do not include provisions modeled on ABA Model Rule 5.5(b), (c), and (d). In states adopting those provisions, Rule 5.5 both authorizes out-of-state lawyers to practice within its limits and treats that conduct as not violating the state's UPL law, functioning like a global pro hac vice order. New York has no comparable provision, and no court-adopted in-house registration rule; the State Bar twice recommended (2003 and 2008) that the courts adopt Model Rule 5.5-style provisions, but the Appellate Divisions declined both times.

Because the committee's jurisdiction is limited to interpreting and applying the Rules of Professional Conduct, and the in-house counsel question is governed by the Judiciary Law rather than any provision of the Rules, the committee concludes it lacks jurisdiction to answer. Noting the question recurs, the opinion urges the Appellate Divisions and the Legislature to provide further guidance on whether and to what extent out-of-state lawyers, especially in-house lawyers serving only a corporate employer, may practice in New York.

In practice

This opinion does not resolve whether an out-of-state lawyer may serve as in-house counsel in New York; the committee holds the question is one of statutory law under the Judiciary Law, outside its jurisdiction. Under the opinion, the answer is not found in the Rules of Professional Conduct, because New York did not adopt the Model Rule 5.5(b)-(d) authorizations or an in-house registration rule. The opinion notes the existing case law treats "incidental and innocuous" out-of-state legal work in New York as not UPL, but it draws no conclusion about the in-house counsel scenario.

Common questions

Q: Did the committee say whether an out-of-state lawyer can be in-house counsel in New York?

A: No. The opinion concludes the question is a matter of law under the Judiciary Law, beyond the committee's jurisdiction, and offers no opinion on it.

Q: Why don't the ethics rules answer this?

A: The opinion explains that New York did not adopt provisions modeled on ABA Model Rule 5.5(b)-(d), which in other states authorize out-of-state practice (including in-house counsel) and define it as not UPL; without those provisions, the Rules do not address the question.

Q: What law governs the question instead?

A: The opinion points to the Judiciary Law (sections 476-a, 478, and 484) on unauthorized practice, as interpreted by New York courts in cases like El Gemayel v. Seaman and Spivak v. Sachs.

Background and rules framework

The opinion concerns Rule 5.5, New York's unauthorized-practice and multijurisdictional-practice rule. The key point is what New York's Rule 5.5 omits: the authorizations in ABA Model Rule 5.5(b), (c), and (d), including Model Rule 5.5(d)(1)'s permission for out-of-state lawyers to act as in-house counsel. Because those provisions were not adopted, the opinion treats out-of-state in-house practice as governed solely by the Judiciary Law's UPL provisions, a question of law outside the committee's interpretive jurisdiction.

Citations and references

Rules of Professional Conduct:

• MR 5.5 (unauthorized practice of law; multijurisdictional practice)
• NY Rule 5.5 (which omits provisions modeled on Model Rule 5.5(b)-(d))

Statutes:

• N.Y. Judiciary Law 476-a, 478, 484 (unauthorized practice of law)

Cases:

• El Gemayel v. Seaman, 72 N.Y.2d 701 (1988), on incidental out-of-state legal work
• Spivak v. Sachs, 16 N.Y.2d 163 (1965), on substantial involvement constituting UPL

See also

• NY State Bar Op. 863: Out-of-state lawyer's practice of immigration law in New York
• NY State Bar Op. 861: Name and ownership of the New York office of a law firm

Source

• Landing page: https://nysba.org/ethics-opinion-835/