Rules Permitting Out-of-State Lawyers to Practice Temporarily in New York: Temporarily Out of Order

By Roy Simon, Distinguished Professor of Legal Ethics Emeritus

This is Part 3 of my update on developments in New York’s regulation of lawyers since the death of NYPRR publisher Lazar Emanuel in November 2011. Part 1 reviewed recent amendments to Rules 3.8, 4.2, and 7.4 of the New York Rules of Professional Conduct. Part 2 focused on new and amended pro bono rules, including Rule 6.1 and related Court of Appeals Rules requiring lawyers to report their pro bono hours and financial contributions.

This part focuses on proposed rules related to temporary law practice or accelerated bar admission in New York. In particular, it focuses on New York’s treatment of out-of-state lawyers who seek to practice temporarily or permanently in New York. I will discuss three proposals to relax New York’s unauthorized practice restrictions that New York’s courts have rejected: (a) broad temporary practice rules based on ABA Model Rule 5.5 (“Unauthorized Practice of Law; Multijurisdictional Practice of Law”); (b) a rule permitting out-of-state lawyers to practice pending admission to the New York Bar; and (c) a rule permitting military spouses who are lawyers to practice in New York under narrow conditions.

Temporary Practice Rules: Consigned to Oblivion?

In the ABA Model Code of Professional Responsibility adopted in 1970, DR 3-101 provided as follows:

DR 3-101 Aiding Unauthorized Practice of Law.

(A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.

(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

New York adopted DR 3-101 verbatim in 1970. In 1983, the ABA switched from the Model Code to the Model Rules of Professional Conduct, but it retained the simple structure of DR 3-101 in Model Rule 5.5 (“Unauthorized Practice of Law”), which said:

A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

This simple world was shaken up in 1998, by a case named Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (1998). Birbrower held that an out-of-state lawyer could engage in the unauthorized practice of law electronically, not just physically. Id. Interpreting California’s statutory prohibition on the unauthorized practice of law [§6125 of the California Business and Professions Code], the Birbrower court said:

Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means. …

The ABA soon formed a Commission on Multijurisdictional Practice that led to the ABA’s adoption of temporary practice provisions in 2002, codified in ABA Model Rule 5.5(b)–(d). The heart of these temporary practice rules was Rule 5.5(c), which provided that a lawyer admitted and in good standing in another U.S. jurisdiction could ethically “provide legal services on a temporary basis” in a jurisdiction that adopted ABA Model Rule 5.5 (“this jurisdiction”) if those services:

(1) “are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter”;

(2) are “reasonably related to a pending or potential proceeding before a tribunal” in which the lawyer is (or reasonably expects to be) admitted pro hac vice;

(3) are “reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding” as long as the services “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice”; and

(4) even if the services were not reasonably related to a pending or potential proceeding before a tribunal or ADR neutral, the lawyer could perform services in the foreign jurisdiction if they “are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

The late Steve Krane, whom we all sorely miss, was then Chair of the NYS Bar Association’s Committee on Standards of Attorney Conduct (COSAC). He wanted New York in the vanguard of jurisdictions adopting the ABA’s temporary practice rules, and in 2003 COSAC persuaded the State Bar’s House of Delegates to recommend that the Courts adopt rules based closely on ABA Model Rule 5.5.

For reasons not known to me, the Courts never formally acted on the NYSBA’s 2003 temporary practice proposals, but it expressed dissatisfaction through back channels, so the State Bar eventually withdrew them. COSAC and the State Bar tried again in 2008 by incorporating slightly different temporary practice rules into the proposed New York Rules of Professional Conduct, but in the Rules that took effect on April 1, 2009, the Courts did not include any temporary practice provisions.

COSAC tried one more time in 2012, but this time COSAC (joined by the New York City Bar and the New York County Lawyers’ Association) proposed new Court of Appeals rules (to be codified as 22 NYCRR Part 523) that the court had power to adopt pursuant to its authority under Judiciary Law §53(2). That section which provides that the Court of Appeals “may make such provisions as it shall deem proper for admission to practice as attorneys and counselors, of persons who have been admitted to practice in other states or countries.” As COSAC pointed out in its report: “The Proposed Rules concern temporary admission to practice for lawyers who have been admitted to practice in other states or countries, and thus fall squarely within the authority granted by §53(2).”

One feature of 2012 proposals not included in the 2003 and 2008 proposals was a provision allowing lawyers from other U.S. jurisdictions to practice while their applications for admission were pending. Specifically, proposed §523.3 would have permitted a lawyer to practice pending admission for up to one year as long as the lawyer (i) submitted an application, within 60 days of beginning practice under the Rule, either to take the New York bar examination or to be admitted without examination, (ii) associated with an admitted lawyer, and (iii) complied with certain other safeguards. COSAC noted that the practice-pending-admission provision (a) “would ease the disruption to practice faced by lawyers who are required to relocate because of, for example, family demands, military transfers, client needs and economic changes,” (b) “would particularly benefit lawyers who move because a spouse is transferred,” and (c) “would ensure that clients of lawyers who relocate to New York can retain the services of their counsel without interruption (i.e., without waiting until the lawyer is permanently admitted in New York).”

As in 2003, the Courts have never directly acted on the proposals — but the Court of Appeals did state its position on the concept of allowing practice pending admission, to which I turn next.

Rejected Rules Permitting Practice Pending Admission in New York

In August 2012, the ABA adopted a Model Rule on Practice Pending Admission. The ABA Model Rule on Practice Pending Admission provides that a lawyer who is in good standing in another U.S. jurisdiction, and who has been engaged in the active practice of law for three of the last five years, “may provide legal services in this jurisdiction through an office or other systematic and continuous presence for no more than [365] days” (or whatever time period a state chooses), as long as (i) the lawyer informs the state’s bar admission authorities that the lawyer is practicing in the state pursuant to the rule, (ii) the lawyer applies for admission to the state’s bar within 45 days after commencing practice under the rule, and (iii) the lawyer meets various other conditions. Model Rule on Practice Pending Admission (2012).

As noted above, COSAC’s proposed temporary practice rules included provisions that closely tracked the ABA’s Model Rule on Practice Pending Admission. Specifically, proposed 22 NYCRR §523.3 would permit a lawyer to practice pending admission for up to one year as long as: (i) the lawyer is not disbarred or suspended from practice, is not currently subject to discipline, and is not the subject of a pending disciplinary matter in any jurisdiction; (ii) the lawyer applies, within 60 days of beginning practice under the Practice Pending Admission Rule, either to take the New York bar examination or to be admitted on motion without examination; (iii) the lawyer associates with a lawyer already admitted in New York; and (iv) the lawyer has not previously been denied admission to practice in New York (e.g., due to a failure to satisfy character and fitness requirements) or failed the New York bar examination.

The report submitted in support of COSAC’s proposed Practice Pending Admission Rule noted that lawyers often need to move to New York on short notice. For example, the report said:

• A lawyer may need to relocate in order to accommodate the needs of a client who has moved to a new jurisdiction.

• A lawyer may receive a job opportunity in New York.

• An in-house lawyer may be transferred to New York often requiring relocation within a very short time.

• A lawyer may need to move to New York for personal reasons, “such as the relocation of a spouse or domestic partner due to military deployment or other professional opportunities.”

“In sum,” the report said, “lawyers increasingly need to relocate during their careers, often more than once and frequently without sufficient notice to obtain bar admission before the move.”

How much notice would a lawyer need to obtain admission to the New York Bar via admission on motion or via the bar exam? The report noted that obtaining admission without examination in New York requires an applicant to complete and submit an application seeking extensive personal and professional information that can take weeks or months to compile — see 22 NYCRR §520.10(b). If the lawyer does not qualify for admission without examination (e.g., the lawyer has not practiced long enough in a jurisdiction that has reciprocity with New York, or is admitted in one of the 16 U.S. jurisdictions that do not have reciprocity with New York), then the lawyer will need to obtain admission via the bar examination, a process that takes at least seven months (and can take much longer). Specifically, an applicant must file a completed application nearly three months before the exam is administered, and there is no provision for late filing. The applicant will typically not receive the results of the exam for three to four months. A person who passes the bar exam must then submit an application to the appropriate Character and Fitness Committee, submit to a personal interview, and attend a swearing-in ceremony.

To illustrate, consider the plight of a married out-of-state lawyer in a non-reciprocity state such as California. His wife is promoted and transferred in May 2015 to an executive position at a corporation’s New York headquarters. The out-of-state lawyer doesn’t qualify for admission on motion (because California lacks reciprocity with New York — see http://www.nybarexam.org/AOM/AdmissiononMotion.htm), but he has already missed the late April deadline to apply for the July 2015 New York bar exam. The lawyer must therefore wait until the February 2016 bar exam, then wait until May for the results — then wait another couple of months for approval by the Character and Fitness Committee. Thus, the out-of-state lawyer cannot obtain admission to the New York Bar until July 2016 at the earliest, well over a year after his wife has relocated to New York.

The New York Courts have not acted on temporary practice rules that the State Bar proposed in 2013, but they have separately rejected the ABA Model Rule on Practice Pending Admission. In September 2013, a month after the ABA adopted its Model Rule on Practice Pending Admission, the ABA wrote to New York’s Board of Law Examiners inquiring about the status of the rule. On Nov. 15, 2013, then-Judge Victoria Graffeo responded on Court of Appeals letterhead by informing the ABA that New York had considered but rejected the proposed rule. The letter, which is public but has not been widely circulated, explained the rejection as follows:

… First, the Model Rule conflicts with New York Judiciary Law §478, which states, in part: “It shall be unlawful for any natural person to practice or appear as an attorney at law … without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath” [see also Judiciary Law §484]. Although the Court of Appeals has authority to promulgate rules regarding the admission of attorneys in New York, those rules cannot conflict with the Judiciary Law [see Judiciary Law §53].

On a practical level, the court was concerned about how attorneys entering New York can be adequately monitored under this rule. Although the Model Rule requires out-of-state attorneys to inform the admissions authorities in the new state prior to initiating practice that they will be “doing so pursuant to the authority of [the rule],” and further requires them to submit an application within 45 days of establishing an office in the new state, there is no practical way to enforce the 45-day application requirements or monitor whether the out-of-state attorneys are complying with these requirements. As you probably are aware, New York admission is a sought-after international credential, and our Appellate Divisions are already stretched thin with the high number of admissions here.

The Court was also troubled that the Model Rule does not explicitly set forth any minimum educational requirements. In New York, we have specific educational standards that must be met before a person can sit for the bar exam or be admitted on motion. Among other things, we do not allow graduates of unapproved law schools, including on-line law schools, to be admitted. As currently drafted, the Model Rule does not sufficiently protect against such persons taking advantage of provisional practice under the rule. Also problematic is that the model rule does not provide any means of evaluating the character of the out-of-state attorneys before they begin practicing in the new state. Although the Model Rule provides that the attorney must to be in good standing in all other jurisdictions where admitted, the courts of New York have never deferred to another state’s determination of an applicant’s character.

The court understands that it can be inconvenient for out-of-state attorneys to wait several months before gaining admission in New York. Nevertheless, we believe that the current admission process serves the important purpose of ensuring that applicants for the bar are competent and possess the good moral character required of an attorney in New York for the protection of New Yorkers who are entitled to high quality legal services.

Thus, the State Bar’s proposed rule permitting practice pending admission, which is based closely on the ABA Model Rule, has effectively been pronounced dead.

Rejected Proposal to Permit Practice By Military Spouses

The Court of Appeals also rejected a narrower rule designed to accommodate lawyers who are married to soldiers. In February 2012, the New York State Bar Association and a relatively new group known as the Military Spouse JD Network jointly persuaded the ABA House of Delegates to adopt a resolution allowing lawyers who are military spouses to obtain quick admission to a state’s bar. The Military Spouse JD Network then wrote to the NYS Board of Law Examiners urging it to adopt a new 22 NYCRR Part 523 that would reduce licensing barriers for military spouses who (i) are active attorneys in good standing in other U.S. jurisdictions, and (ii) are residing in New York due to military orders. The NYSBA’s House of Delegates then passed a resolution in support of the proposed rule, and in May 2012 the State Bar President (then Vince Doyle) sent the resolution and a supporting report to Chief Judge Lippman, saying:

… [L]awyers married to military spouses face unique challenges in their career; due to frequent moves required for military service, military spouse attorneys often are unable to meet the practice requirements required for admission on motion. …

Proposed Part 523 would permit the Appellate Division, in its discretion, to license a military spouse attorney without examination. The attorney would be required to provide proof of the military spouse’s orders, certificates of good standing from other jurisdictions in which the attorney is admitted, and evidence of character and fitness as may be required by the Appellate Division. Upon admission, the attorney would be subject to the rules of professional conduct and to professional discipline to the extreme extent as other members of the bar.

In May 2013, the Board of Law Examiners — speaking both for itself and for the Court of Appeals — sent a letter to the new State Bar President (Seymour James) rejecting the proposed rule. The rejection letter said, in part:

The proposed Military Spouse Rule contains no requirement that the jurisdiction where the attorney is currently admitted has reciprocity with New York, as required by Judiciary Law §90(1)(b); nor does the proposed rule embrace a requirement that the attorney be in compliance with his/her child support obligations, as required by Judiciary Law §90(1)(b). Neither the Court of Appeals nor the Board possesses the authority to exempt an applicant from these statutory obligations.

The proposed Rule also does not contain any educational qualifications or practice requirements. Military spouses who graduate from non-ABA-approved law schools, correspondence law schools, online law schools, and foreign law schools could be admitted to practice under the proposed rule … .

But that was not the end of the matter. The letter also pointed out alternative means by which military spouses could obtain accelerated admission in New York:

Unlike many states, the New York Court of Appeals has promulgated a “general waiver rule” [Section 520.14 of the Rules of the Court of Appeals], reserving to itself the discretion, upon application, “to vary the application or waive any provision of these rules where strict compliance will cause undue hardship to the applicant.” There is no fee for such an application and an applicant may make application to the Court at any time. Based on my observations, the Court generally acts on such applications expeditiously.

We believe that the existing waiver process, which is available to all applicants under Court of Appeals Rule 520.14, is the more appropriate mechanism for considering the eligibility of military spouse attorneys. …

Similarly, the Board has a waiver provision in its own rules [22 NYCRR 6000.10], which permits it to consider, upon good cause shown, a late application to sit for the bar examination … . I am confident that our Board, if presented with a request for a late with application from a military spouse who did not learn that his or her family was being relocated to New York until after the bar exam application filing had expired, would look favorably upon such a request.

In short, although New York has flatly rejected a special rule to speed up bar admission for lawyers married to members of the military who are transferred to New York, other avenues to accelerated admission may be open, both to applicants who qualify for admission on motion and to those who will need to sit for the New York bar exam.

Conclusion: You Just Have to Wait …

In the classic song “You Can’t Hurry Love” ($1.29 at the iTunes store), Diana Ross and the Supremes sang: “You can’t hurry love/No, you just have to wait/You got to trust, give it time/No matter how long it takes.” [Diana Ross and the Supremes, You Can’t Hurry Love (Motown, 1966).] Over the past dozen years, the New York Courts have shown no inclination to allow lawyers from other jurisdictions to practice in New York on a temporary basis, and no inclination to hurry the process of permanent bar admission. No, you just have to wait… and if we are waiting for temporary practice rules modeled on ABA Model Rule 5.5 like the ones in place in 46 other U.S. jurisdictions, we may have to wait a very long time.

Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition consists of more than 2,000 pages of commentary concerning the New York Rules, including a phrase-by-phrase analysis of each rule, plus summaries of related ethics opinions and cases, historical context, underlying policies, and practical advice. The 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.

In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.

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