The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
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.
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.
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.
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 email@example.com
To contact the editor responsible for this story: Kirk Swanson at firstname.lastname@example.org
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)