Out-of-State Lawyer May Use Nonlawyer to Conduct Immigration Practice in Illinois

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By Joan C. Rogers  

Nov. 1 --Illinois ethics rules allow a lawyer licensed in another state to conduct a law practice limited to immigration law in Illinois by having a nonlawyer assistant meet with clients and obtain information for the lawyer to use, the state bar's ethics committee advised in an October opinion (Illinois State Bar Ass'n Comm. on Prof'l Ethics, Op. 13-08, 10/13).

The committee found that the practice of immigration law fits squarely within the “federal law” exception in the Illinois ethics rule that authorizes some types of cross-border practice, and that using a nonlawyer to meet with clients and collect information does not amount to assisting unauthorized practice. The opinion emphasizes, however, that:

• the services must be limited to immigration law;

• the lawyer must disclose this limitation and that the lawyer is not admitted in Illinois; and

• careful oversight of the nonlawyer assistant is essential.

 

Federal Practice Exception

The opinion considers an out-of-state lawyer's plan to establish a relationship with a nonlawyer in Illinois for the practice of immigration law. The nonlawyer will work for the lawyer as an employee or independent contractor, meeting with clients in Illinois and obtaining information for the lawyer's use in completing immigration forms.


“[S]upervision can be a challenge when an out-of-state lawyer conducts business with the use of an in-state assistant.”

 

Illinois Ethics Op. 13-08

The committee concluded that this arrangement is permissible whether or not it amounts to the practice of law in Illinois by the out-of-state lawyer. For purposes of the opinion, the committee assumed that the proposed arrangement does constitute the practice of law.

The panel found that the inquiry implicates Illinois Rule of Professional Conduct 5.5(b)(1), which prohibits a lawyer who is not admitted in Illinois from establishing an office in Illinois for the practice of law, except as authorized by the ethics rules or other law. Because the plan envisions that a nonlawyer assistant would be working in an established Illinois office on behalf of an attorney not admitted in Illinois, Rule 5.5(b)(1) would forbid the arrangement unless an exception applies, the committee observed.

The committee found that the exception in Rule 5.5(d)(2) for federal law applies here, because federal regulations recognize that a lawyer authorized to practice immigration law may be a member of the bar of any state. It would contravene the supremacy clause of the U.S. Constitution to require state bar membership as a condition for practicing immigration law in the state, the panel said. Other ethics committees have identified immigration law as an example of activity that fits within the federal practice exception, the committee noted, citing opinions from Alaska and Virginia.

The opinion emphasizes, however, that the lawyer's practice must be strictly confined to the immigration niche that permits practicing without an Illinois license. The lawyer may not practice more generally or provide advice or services on Illinois matters, even if it would help an immigration client, the panel said.

In addition, the committee said, the lawyer should be careful not to state or imply that the lawyer is admitted in Illinois. Rule 5.5(b)(2) specifically prohibits lawyers from holding themselves out as admitted in Illinois if they are not licensed there, and Rule 7.1 sets out a general prohibition against misleading communications, the committee pointed out.

If the lawyer's letterhead, business card, website or advertising shows any point of contact within Illinois, the material should state that the lawyer is not admitted in Illinois with a practice limited to immigration matters, the panel advised.

Need for Supervision

The committee found that the lawyer would not be guilty of assisting the unauthorized practice of law by using a properly supervised nonlawyer assistant who meets with clients and takes information for the lawyer's use in practicing immigration law.

The opinion emphasizes the lawyer's responsibilities under Rule 5.3(b), which requires a lawyer with direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the nonlawyer's conduct comports with the lawyer's professional obligations. “The essence of those responsibilities is supervision,” the committee advised.

The committee pointed out that “supervision can be a challenge when an out-of-state lawyer conducts business with the use of an in-state assistant.”

While the panel declined to detail what steps the lawyer should take, it said one particular concern in immigration practice would be any effort by the nonlawyer to solicit clients in violation of lawyer advertising rules.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com


Full text at http://www.isba.org/sites/default/files/ethicsopinions/13-08.pdf.

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