010219 NYEO, ETH 1160

Case DateJanuary 02, 2019
CourtNew York
ETH 1160
Ethics Opinion 1160
New York Ethics Opinion
New York State Bar Association Committee on Professional Ethics
January 2, 2019
         Topic: Affiliation and fee-sharing with a New York resident attorney not admitted in New York, although admitted out-of-state, and licensed to practice in New York federal courts.          DIGEST: Not proper for a New York attorney to affiliate and share fees with a lawyer who, though resident in New York, is not admitted to practice in New York, if the solicitation of clients, sharing of fees, and any other services performed, would as a matter of law constitute the unauthorized practice of law.          Rules: 1.5(g); 5.5; 7.1, 7.2, 7.3, 8.4          FACTS          1. The inquirer, an attorney recently admitted to practice in New York, is acquainted with another lawyer. The other lawyer, like the inquirer, resides in New York, but the other attorney is admitted only in another state, not New York, though the latter is admitted to practice in federal courts located in New York. According to the inquirer, the other lawyer is capable of generating business, and the inquirer would like to affiliate with this other lawyer, listing the other lawyer as a partner, associate, counsel, or otherwise, on letterhead showing that the other lawyer is admitted solely in the other state and not New York. The inquirer anticipates that the other lawyer would attend initial meetings with the clients being produced by the other lawyer, but then would not deal with any of the legal work being performed.          QUESTION          2. May a lawyer admitted in New York affiliate and share legal fees with another lawyer, who, while a resident of this State, is not admitted here, with the affiliation intended solely for the purpose of obtaining clients referred by the non-admitted lawyer?          OPINION          3. “Our prior opinions have recognized that a New York law firm may include lawyers not admitted to practice in New York.” N.Y. State 955 ¶ 7 (2013); see, e.g., N.Y. State 704 (1997). Our main concern has been that the New York firm, consistent with the rules governing lawyer advertising set out in Rule 7.1 of the N.Y. Rules of Professional Conduct (the “Rules”), avoid misleading the public by failing to disclose the jurisdictional limitations on practice by out-of-state lawyers. See Rule 7.5(d) (partnership practicing with lawyers licensed in different jurisdictions must “make clear the jurisdictional limitations on” lawyers in the firm not licensed to practice in all jurisdictions); N.Y. State 1042 ¶ 15 (2014) (so concluding); N.Y. State 144 (1970) (same result under the Rules’ predecessor the N.Y. Code of Professional Responsibility (the “Code”)).          4. Our prior...

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