I'm licensed out of state and practice only federal immigration law in Texas. Is the Texas bar's discipline a concern, and what is the risk for a Texas lawyer who employs me?

Plain-English summary

The questions concerned an attorney with a valid, active license from a state other than Texas who intended to represent clients in Texas solely on immigration and nationality matters before the U.S. Immigration and Naturalization Service and in federal courts, including by traveling to Texas for an isolated matter, opening a Texas office, or becoming an employee of a Texas-licensed attorney. The opinion broke the issues into the State Bar's jurisdiction, the unauthorized practice of law, and the duties of a Texas lawyer who employs the out-of-state attorney.

On jurisdiction, the Committee read DR 8.05(a) (a lawyer is subject to this state's disciplinary authority if admitted to practice here or specially admitted for a particular proceeding) to mean licensed and admitted as a member of the State Bar of Texas. It concluded the State Bar therefore cannot take disciplinary action against a person not licensed in Texas or specially admitted, so the out-of-state attorney is not subject to Texas discipline even if his Texas activities, including advertising, would violate the rules.

On the unauthorized practice of law, the Committee noted that question belongs to the Unauthorized Practice of Law Committee, the Board of Law Examiners, and the courts, not to the Professional Ethics Committee. Without issuing a UPL opinion, it assumed, based on Sperry v. Florida, Opinion 276, the Board of Law Examiners' policy statement, and the federal regulations defining who may appear before the INS, that representing clients solely on federal immigration matters is not UPL in Texas regardless of where the attorney lives, whether he keeps a Texas office, or whether he is employed by a Texas lawyer, so long as the representation is in fact limited to federal-law matters. It cautioned that this does not resolve every UPL problem, because immigration matters often turn on Texas law (family, criminal, employment), so the risk of UPL increases with the number of cases handled.

On the employing Texas lawyer, the Committee applied DR 5.05(b)'s bar on assisting a non-bar member in the unauthorized practice of law. If the out-of-state attorney becomes an employee of a Texas-licensed attorney, that Texas attorney assumes the risk and is subject to discipline if he assists the out-of-state attorney in representing Texas clients (including through non-compliant advertising) on matters not in fact limited solely to federal law.

Currency note

This opinion was issued in 1996, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since (including the March 1, 2005 amendment to the fee rule, Rule 1.04, and the comprehensive 2021 revisions adopted by Texas Supreme Court order). 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 the State Bar of Texas discipline an out-of-state lawyer practicing federal immigration law here?

A: The Committee concluded no. Under DR 8.05(a), the State Bar's disciplinary authority reaches only those licensed in Texas or specially admitted for a proceeding, so it cannot discipline an unlicensed out-of-state attorney even for conduct, including advertising, that would violate the rules.

Q: Is practicing only federal immigration law in Texas the unauthorized practice of law?

A: The Committee declined to decide the UPL question, which belongs to the UPL Committee, the Board of Law Examiners, and the courts. It assumed, based on Sperry v. Florida and related authority, that representation limited solely to federal immigration matters is not UPL, while warning the risk rises as cases require advice on Texas law.

Q: What is the risk for a Texas lawyer who employs the out-of-state attorney?

A: The opinion concluded the Texas lawyer is subject to discipline under DR 5.05(b) if he assists the out-of-state attorney in providing legal services to Texas clients that would constitute the unauthorized practice of law, that is, services not in fact limited to federal law.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 8.05(a) (disciplinary authority; ABA Model Rule 8.5) and Rule 5.05(b) (assisting the unauthorized practice of law; Model Rule 5.5). It relies on Sperry v. Florida (federal authorization to appear before a federal agency), Opinion 276, the Board of Law Examiners' policy statement, and the federal regulations on who may represent persons before the INS.

Citations and references

Rules of Professional Conduct:

• MR 5.5 (unauthorized practice of law; multijurisdictional practice)
• MR 8.5 (disciplinary authority)
• Texas Disciplinary Rules 8.05(a), 5.05(b)

Cases:

• Sperry v. Florida, 373 U.S. 379 (1963), federal authorization to practice before a federal agency limits state UPL regulation

Statutes and authorities:

• 8 C.F.R. 1.1(f); 8 C.F.R. 292.1(a)(1) (who may represent persons before the INS)
• Texas Board of Law Examiners, "Policy Statement on Lawful Practice," Section I(C) (July 1994)

Other opinions cited:

• Tex. Ethics Op. 276 (Sept. 1964): practice before a federal agency

See also

• TX Ethics Op. 522: Firm Disclosure Duties After a Partner's False Credentials
• TX Ethics Op. 531: Corporation Charging Subsidiaries Market-Based Fees for Legal Services

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-516/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_516.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. The source text encoded curly quotation marks and a section symbol with unreadable characters; these have been restored.

QUESTION PRESENTED

Do the following activities of the out-of-state attorney violate the Texas Disciplinary Rules of Professional Conduct?
(a) Out-of-state attorney travels to Texas to appear and represent a client in Texas solely before the U.S. Immigration and Naturalization Service on an isolated matter;
(b) Out-of state attorney establishes an office in Texas and represents clients in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal courts; and
(c) Out-of-state attorney resides in Texas, becomes an employee of an attorney who is licensed in Texas, and in connection with such employment the out-of-state attorney represents clients in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal courts.
If the out-of-state attorney who holds himself or herself out to the public as practicing "solely federal law" in Texas, but does in fact advise clients in Texas concerning legal matters other than in federal court proceeding or before the U.S. Immigration and Naturalization Service is the out-of-state attorney subject to discipline by the State Bar of Texas for violating the Texas Disciplinary Rules of Professional Conduct?
Is an out-of-state attorney who represents clients in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal court proceedings required to disclose in advertising the fact that the out-of-state attorney is not licensed to practice law in Texas and, in fact, is licensed as an attorney in a state or jurisdiction other than Texas?
Does Texas law limit or prevent the out-of-state attorney, who practices law in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal courts, from engaging in any the activities set forth in (a), (b), or (c) of question one?

STATEMENT OF FACTS

An attorney has a valid, active law license issued by a state or jurisdiction in the United States other than Texas, and such attorney is not licensed to practice law in Texas (the "out-of-state attorney"). The out-of-state attorney intends to represent clients in Texas solely on immigration and nationality law matters before the United States Immigration and Naturalization Service and in federal courts.

DISCUSSION

These questions present issues concerning (I) the jurisdiction of the State Bar of Texas to apply and enforce the Texas Disciplinary Rules of Professional Conduct (Texas Disciplinary Rules) to attorneys not licensed to practice law in Texas but who have a valid, active license to practice law in another state or jurisdiction in the united states, (ii) the unauthorized practice of law in Texas, and (iii) the duties of a licensed attorney in Texas who employs an out-of-state attorney holding himself or herself out to represent clients in Texas solely on immigration and nationality matters before the U.S. Immigration and Naturalization Service and in federal court proceedings.

JURISDICTION OF THE STATE BAR OF TEXAS
Texas Disciplinary Rule 8.05(a) provides, in part: "A lawyer is subject to the disciplinary authority of this state, if admitted to practice in this state or if specially admitted by a court of this state for a particular proceeding." The committee interprets the phrase "admitted to practice in this state" to mean licensed to practice law in Texas and admitted as a member of the State Bar of Texas. The jurisdiction of the State Bar of Texas does not permit it to take disciplinary action for any violation of the Texas Disciplinary Rules against any person who is not licensed to practice law in Texas or who is not specially admitted by a Texas court for a particular proceeding. Accordingly the out-of-state attorney is not subject to disciplinary proceedings or actions by the State Bar of Texas if any of his or her activities in Texas violate the Texas Disciplinary Rules, including but not limited to the restrictions on advertising contained therein.

UNAUTHORIZED PRACTICE OF LAW IN TEXAS
A determination as to what constitutes the unauthorized practice of law in Texas is within the province of the Unauthorized Practice of Law Committee, Texas Board of Law Examiners, and ultimately Texas courts. The Professional Ethics Committee has no authority to issue opinions about what constitutes the unauthorized practice of law in Texas.

Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federal law in the area of immigration and nationality law before the U.S. Immigration and Naturalization Service and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out- of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law.

These assumptions are based on the U.S. Supreme Court decision, Sperry v. Florida, 373 U.S. 379 (1963); Texas Ethics Opinion 276 (TBJ, September 1964, Supplement No. 4); Section I(C) of the "Policy Statement on Lawful Practice" adopted by the Texas Board of Law Examiners (July 1994); and 8 C.F.R. Section 1.1(f) and 8 C.F.R. 292.1(a)(1) which define attorneys who are authorized to represent persons before the Immigration and Naturalization Service as "any person who is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia...."

However, the committee recognizes that the foregoing assumptions do not resolve all unauthorized practice of law problems presented in this question. As a practical matter, it simply may not be possible to separate federal and state law issues when representing clients on matters under the U.S. Immigration and Nationality Act. Representing clients on immigration and nationality law may require an out-of-state attorney to know and advise such clients on issues and matters involving Texas law. For example, Texas law governing family matters such as marriage, divorce and adoption may be determinative in certain immigration cases; likewise, immigration law questions may necessarily involve giving advice on Texas criminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging in the unauthorized practice of law in Texas inevitably increases with the number of immigration and nationality cases handled by an out-of-state attorney.

TEXAS ATTORNEY WHO EMPLOYS AN OUT-OF-STATE ATTORNEY
Texas Disciplinary Rule 5.05 titled "Unauthorized Practice of Law" provides in subsection (b) that a lawyer licensed to practice in Texas shall not "assist a person who is not a member of the bar in the performance of activity that constitutes the an authorized practice of law." If an out-of-state attorney becomes an employee of a licensed Texas attorney, then the Texas attorney assumes the risk and becomes subject to discipline under the Texas Disciplinary Rules if the Texas attorney assists an out-of-state attorney in engaging in any legal representation of clients in Texas, which would include any advertising not in compliance with the Texas Disciplinary Rules, on issues or matters that in fact are not limited solely to federal law.

CONCLUSION

Under the jurisdictional provisions set forth in Texas Disciplinary Rule 8.05(a), the State Bar of Texas does not have the authority to take disciplinary actions under the Texas Disciplinary Rules or Texas Rules of Disciplinary Procedure against any person who is not licensed to practice law in Texas or who is not specially admitted by a Texas court for a particular proceeding.

It is assumed that representing clients in Texas solely on issues or matters before the U.S. Immigration and Naturalization Service and in federal courts would not constitute the unauthorized practice of law in Texas. However, any such representation that also involves advice or other legal services relating to matters of Texas law would not be within the scope of this assumption and may, depending on the circumstances, constitute the unauthorized practice of law in Texas.

A licensed Texas attorney who employs an out-of-state attorney is subject to discipline under Texas Disciplinary Rule 5.05(b) if he or she aids or assists an out-of-state attorney in providing legal services to clients in Texas that would constitute the unauthorized practice of law.

Tex. Comm. On Professional Ethics, Op. 516 (1996)