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December 16th, 2015
New York Authorizes Temporary Practice By Out-Of-State Lawyers
In a thrilling and important development, New York has promulgated a new Court Rule, 22 NYCRR § 523 ("Section 523"), that allows lawyers admitted in other jurisdictions, but not admitted in New York, to practice here under certain circumstances. This new Rule brings New York into line with 46 other U.S. jurisdictions which have adopted variations of Model Rule 5.5, otherwise known as the "multijurisdictional practice" rule and the template for Section 523. Though not cast as a professional conduct rule, Section 523 will have the exact same effect, allowing lawyers to cross state lines to practice here without running disciplinary risks. The new rule takes effect on December 30, 2015.
Section 523 is very simple. It continues to prohibit lawyers not admitted here from "establish[ing] an office or other systematic or continuous presence" in New York or from holding themselves out to the public as New York lawyers. But it creates four safe harbors for such lawyers to practice in New York temporarily: (i) if they associate with a lawyer admitted to practice here (i.e., engage local counsel); (ii) if they perform work "in or reasonably related to" a court proceeding pending in a jurisdiction in which they are authorized to practice; (iii) if they perform work "in or reasonably related to" an arbitration, mediation or other ADR proceeding in a jurisdiction in which they are authorized to practice; and (here's the big one) (iv) they perform legal services which "arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted or authorized to practice."
Much about Section 523 is important, but two aspects in particular create revolutionary changes to New York practice rules. First, as the last safe harbor makes clear, Section 523 applies not just to litigators but to commercial lawyers, authorizing cross-border commercial practice that has previously been prohibited in New York. Second, Section 523 covers not just lawyers admitted in other U.S. jurisdictions, but also lawyers who are members of "a recognized legal profession in a non-United States jurisdiction," as long as such lawyers are "authorized to practice as attorneys or counselors at law or the equivalent and are subject to effective regulation" in their home jurisdictions. All of these lawyers are subject to appropriate lawyer discipline.
In short, Section 523 opens our borders to lawyers from across the country and across the globe to transact legal business here, while adequately protecting the public. It ends the disconnect between New York's lawyer admission rules and the reality of 21st century legal practice, while enhancing New York's reputation as the center of national and international commerce.
If you have any questions about temporary practice by out of state lawyers or other professional responsibility issues, please contact Ronald Minkoff at (212) 705 4837 or firstname.lastname@example.org, John Harris at (212) 705 4823 or email@example.com, Nicole Hyland at (212) 826 5552 or firstname.lastname@example.org, Richard Maltz at (212) 705 4804 or email@example.com, Tyler Maulsby at (212) 705 4893 or firstname.lastname@example.org or any other member of the Legal Ethics and Professional Responsibility Group.
Other Legal Ethics and Professional Responsibility Alerts
Non-Party Has Sufficient Interest to Disqualify Law Firm from Second Circuit Case
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Watch What You Say: New York Court Rule Will Expose More Attorney-Client Communications
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June 16 2016