Opinion 2005-14
(August 2005)

The inquirer received her law degree from a state university in the former USSR. This degree allowed her to practice law in all 15 republics of the former Soviet Union including Russia and Ukraine. Five years ago she received an LL.M. in Comparative Law degree from an ABA approved law school in the United States.

In 2004 the inquirer passed the bar exam in a state which has reciprocal admission with Pennsylvania. In addition, she passed the Multistate Professional Responsibility Exam. Her scores on both exams exceeded those required by Pennsylvania.

In 2005, the inquirer received a full unrestricted license to practice law in the state where she passed the bar exam. The license allows her to practice as an Attorney and Counselor at law in all the courts of the state. The inquirer’s goal is to practice immigration law only, in Pennsylvania. The inquirer wants to know given her education and admission to the reciprocal state, whether she would be permitted ethically to practice immigration law in Pennsylvania from a law office in Pennsylvania. Furthermore she asks if this would be impacted by whether she is doing this as a sole practitioner or with a partner licensed in Pennsylvania.

A similar question was addressed in Committee opinion 2004-6. However, the circumstances there were slightly different in that the inquirer was eligible to take the Pennsylvania Bar Exam and was only going to be practicing in Pennsylvania with an out of state license for a temporary period of time. In the present inquiry there are two issues. First, whether given the inquirer’s present qualifications, she is eligible to either take the Pennsylvania Bar Exam or eligible for admittance by waiver into Pennsylvania. Second, if she is not, whether Pennsylvania Rule of Professional Conduct (“the Rules”) 5.5 would nevertheless allow her to practice here.

Pennsylvania Bar Admission Rules (the “B.A.R.’s”) govern both eligibility to take the bar exam as well as waiver into the bar from a reciprocal state. They also govern the licensing of an individual as a “foreign legal consultant.”

B.A.R. 203 governs eligibility to sit for the Pennsylvania Bar Exam. The inquirer would not qualify to take the exam since she holds neither a Bachelor of Laws or Juris Doctor degree from an ABA accredited law school as required by B.A.R. 203(2). B.A.R. 205 governs admission to the Bar by foreign attorneys and graduates of foreign institutions. The inquirer would not qualify for admission under this B.A.R. because she can not meet the requirements of B.A.R. 205(b) in that she has not had 30 hours of education covering certain specific courses in an accredited American law school. B.A.R. 204 governs admission by waiver from a reciprocal state. Again, even though she is licensed in a reciprocal state the inquirer does not qualify for admission under this B.A.R. because she can not meet the educational requirements found in B.A.R. 204(1) nor the experience requirements found in B.A.R. 204(4).

The Committee notes that the inquirer might qualify to receive a license as a “foreign legal consultant” pursuant to B.A.R. 341 but this type of license would not permit her to practice the type of law in Pennsylvania about which she is asking.

The question thus becomes whether Rule 5.5 “Multi-jurisdictional Practice of Law” will permit an attorney licensed in another state, who is ineligible as presently educated to either sit for the Pennsylvania Bar Exam or waive into the Pennsylvania Bar, to nevertheless open an office in Pennsylvania for the limited practice of Immigration and Naturalization law. Provided that the inquirer is admitted to practice before the Immigration and Naturalization Court, based upon the provisions of Rule 5.5d(2), and the clarification of that rule provided by Comment 15, the answer is “yes.” The analysis closely follows that of opinion 2004-6, the relevant portions of which provide as follows:

Recently Rule 5.5 was amended to specifically allow for the multi-jurisdictional practice of law (MJP). In part, the Rule states that:

…(d) A lawyer admitted in another United States jurisdiction or a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

…(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

…Rule 5.5(d)(2) makes it clear that the inquirer is authorized to provide his immigration services by virtue of his admission to the Immigration Court.

…Although the Comments to the Rules are not officially adopted by the Supreme Court they are included to further clarify and explain the Rules themselves. Comment 15 to Rule 5.5 is directly on point to this inquiry and provides that:

15. Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.

Since the inquirer’s situation clearly fits within 5.5d(2) it becomes clear that he is not required to be admitted to the Pennsylvania Bar in order to maintain an office here provided he limits his practice to immigration work. This is true whether or not he is in a partnership with a Pennsylvania admitted attorney.

There are several other issues to which the Committee would like to draw the inquirer’s attention. Pursuant to Rule 5.5, Comment 19, “A lawyer who practices law in this jurisdiction pursuant to paragraph (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5a.” Rule 8.5a provides in part that, “…A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.” Given the dual accountability provided by this Rule, the Committee urges the inquirer to also obtain an opinion from the appropriate body in the state to which she is admitted to practice to determine if her proposed conduct runs afoul of any of its ethics rules. Furthermore, the inquirer should understand that while her conduct in Pennsylvania while representing clients in Pennsylvania is subject to the Pennsylvania Rules (see Rule 8.5(b)(2)), it could also be subject to the Rules of the state in which she is admitted.

Rules 7.1 and 7.5b require that the inquirer note on all her letterhead, office signage, business cards and on/in any other publicity or advertising vehicles, that she is admitted only in the state to which she is licensed, and that her practice in Pennsylvania is strictly limited to Immigration and Naturalization.

The Committee notes that oftentimes state law issues, for example domestic relations law, will have an impact on representation in an immigration matter. The inquirer is required by Rule 1.1 (Competence), if dealing with any of these questions to have sufficient knowledge of such law in order to provide competent advice. However, the inquirer’s involvement in such areas must be limited to advice and discussion on such matters as they impact the client’s immigration matter and nothing further. Should the client request that the inquirer become more involved, to do so would place the inquirer in violation of Rule 5.5.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.