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ETHICS OPINION 354-1940
NUMBER 354 1940
Question. X, a lawyer of another state, proposes to establish a consulting practice in New York for members of the New York Bar on matters relating to his specialty under the laws of his own state. Being a resident of the other state and intending to continue his regular practice there, he is not eligible for admission to the New York Bar. He plans to be in New York City on certain days each month and thus build up a specialized practice which he has developed as the author of a local textbook, but is now handling largely by telephone and correspondence. He would like to be advised on the following questions:
1. Can the following notice be sent with propriety to members of the New York Bar with whom he is personally acquainted, or to a larger list of lawyers?
John X _________ X ____________ & Y ______________ Telephone:
James Y _________ ___________Building [in other state]
Other City, State
We announce that John X _________, of this firm, author of “_______ Law” [of the other state] and formerly Professor of Law at the University of ________ will be available for consultation on [name of other state] law and practice with members of the New York Bar, on the first and third Mondays of each month at the offices of __________, One Wall Street, New York. Telephone (at all times) Rector _________
2. Can he with propriety maintain the proposed telephone listing in New York under “X and Y of ___________ [other city]” or “John X ____________,office,” without further designation “attorney” or “lawyer”‘?
3. Is it desirable or essential that his office connection in New York should be with a New York lawyer or law firm?
4. Can he with propriety enter into an arrangement for paying his New York overhead, or part of it, contingently out of the receipts of his New York practice? Would such an arrangement, if proper with a New York lawyer, be improper when made with an individual not practicing law, or a corporation?
5. It is assumed that a direct partnership with a New York lawyer would be improper. Confirmation or disagreement on this point is requested.
6. If the plan as outlined does not appear proper, would the Committee suggest any modifications which it would consider desirable, bearing in mind that a lawyer of another state who should abandon his local practice and move his residence to New York, to be admitted to the New York Bar, would soon cease to be qualified as an expert on the law and practice of the other state?
Answer. 1. In the opinion of the Committee, it would not be professionally improper to circulate the proposed announcement either to members of the New York Bar with whom the inquirer is personally acquainted or to a larger list of lawyers, if the reference to the telephone service “at all times” is eliminated. We are of the opinion, however, that It would be more consonant with the dignity of the profession if another phrase were substituted for the expression “available.” We are further of the opinion that the announcement should include some statement definitely excluding the impression that the announcer is a member of the New York Bar, (See Opinions 134 and 237.)
2. There is no impropriety in the proposed telephone listing in either form, provided there is no indication that the subscriber is an attorney. (See Opinion 134.)
3. It is not essential that the New York connection be with a New York lawyer or law firm. It would be improper for the New York connection, if not a lawyer, to be of such a nature as to derogate from the dignity of the profession. Otherwise, we do not characterize the proposed connection with a local lawyer or law firm as being either desirable or undesirable.
4. The inquirer may not with propriety enter into any arrangement to base his payment of overhead expenses on the receipts of his practice in New York. To make such an arrangement might tend to encourage the solicitation of business for the inquirer (see Canon 34; Opinion 341). We do not express any opinion on the legality of such arrangement with a lay person or organization, (See, however, Sections 270. 274, 275a and 280 of the New York Penal Law.)
5. We adhere to our former answer in Opinion 24 to the effect that a partnership between a lawyer of this state and a person not admitted to the New York Bar, whether a lawyer of another state or a layman, is professionally improper. (See, however, our former answers in Opinions 182 and 197 which are distinguishable.)
6. In view of the answers given to the preceding questions, we deem an answer to question 6 unnecessary.
The following communication with reference to Opinion 354 of the Committee on Professional Ethics has been received from the Committee on Unlawful Practice of the Law of this Association and is published at the request of the chairman of that Committee:
June 23, 1939
To the Committee on Professional Ethics
of the New York County Lawyers’ Association
Gentlemen:
Your Association’s Committee on Unlawful Practice of the Law is confronted’ with an ever increasing problem arising out of lawyers from foreign jurisdictions establishing offices here or attempting to make it a practice to give legal advice and render services in New York State, although not duly admitted to practice here.
This Committee has examined your answer to Opinion 354, which was recently promulgated. While recognizing the substantial correctness of that answer as applied to the specific facts propounded in the question, this Committee conceives it to be its duty to the public and to the Bar to express its opinion with respect to certain implications arising from the situation there disclosed, so that your answer may not perhaps be improperly used as a justification for the unlawful practice of the law in New York.
The legislature in several enactments has indicated the policy of the State of New York with respect to the practice of the law. In Section. 270 of the Penal Law, it has denied the right of anyone not duly admitted to practice in this state to make it a business to practice as an attorney at law, or to hold himself out to the public as being entitled to practice law in any manner, or to convey the impression that he is a legal practitioner of law. In Section 280 of the Penal Law, in permitting the furnishing of information and clerical services by corporations to lawyers only, the legislature has provided that this privilege is to be subject to the condition “that at all times, the lawyer receiving such information or such services shall maintain full professional and direct responsibility to his clients for the information and services so received.”
In our opinion, public interest requires an equally stringent protection where services are rendered by an individual not duly admitted to practice in this state. We believe, therefore, that a foreign lawyer engaging in any activities in this state, in order to avoid the possible charge of the unlawful practice of the law, must conform to the following requirements:
1. A foreign lawyer should not make it a practice to render any of the services described and implied in Opinion 354 directly to the lay public, and shall render the same to or under the direction of a member of the New York Bar who shall “maintain full professional and direct responsibility to his clients for the information and services so received,”
2. The form of announcement referred to in the Opinion should affirmatively exclude any possible impression that the foreign lawyer is a member of the New York Bar, or offers to give his services generally to the public,
3. Scrupulous care should be taken by the foreign lawyer that there is nothing contained in the announcement, on any letterheads, on his office door, or in any other way, which would tend to deceive the public into believing he is qualified to practice law in New York State.
4. Any arrangement with a lay person or organization whereby the overhead expenses of the foreign lawyer for office accommodation or otherwise are paid directly or contingently out of the receipts of his New York activities may subject both parties to the provisions of Sections 270, 270a and 280 of the Penal Law.
Very truly yours,
Edwin M. Otterbourg
Chairman of the Committee on
Unlawful Practice of the Law
of the New York County
Lawyers’ Association