MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-11
Whether an attorney licensed to practice in another jurisdiction, but not licensed to practice in Maryland, may conduct an “immigration-only” practice in Maryland.
You inquire whether an attorney who is licensed in another jurisdiction (in this case, Puerto Rico), but not licensed in Maryland, may open a practice in Maryland limited to only immigration matters.
You state your intention to open an office in this state and establish an immigration practice here with a practice concentrating on representing clients before federal immigration courts.
This Committee opines only on matters of ethics and does not opine on matters of law. The Committee has addressed similar issues in past opinions, including Ethics Docket No. 2007-06 and No. 2002-09; this opinion incorporates portions of those opinions. Also, the Committee has recently drafted an opinion regarding similar immigration law issues; it will be available online at the MSBA website as Ethics Docket No. 2012-09.
Rule 5.5(a) of the Maryland Rules of Professional Conduct states:
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction;…
and Maryland Rule 5.5 (d) (2) provides
A lawyer admitted in another United States 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.
It appears that the issue of using the authority of federal law to provide legal services in a state in which an attorney was not licensed was addressed in the Supreme Court case Sperry v. Florida (373 U.S. 279, 1963). Further, the Code of Federal Regulations, at 8 CFR §1292.1 and 8 CFR §292.1(a)(1) describe individuals that may represent others before the federal courts on immigration issues.
In order to be in compliance with Rule 5.5, you must meet the requirements set out under the federal law, and you must not practice law outside of the areas allowed by federal law.
This may present serious limitations to your proposed practice in Maryland. The Maryland Code, in the Business Occupations and Professions Article, §10-101 (h), defines the term, to “practice law” in this manner:
(h) Practice law.
(1) “Practice law” means to engage in any of the following activities:
(i) giving legal advice;
(ii) representing another person before a unit of the State government or of a political subdivision; or
(iii) performing any other service that the Court of Appeals defines as practicing law.
(2) “Practice law” includes:
(i) advising in the administration of probate of estates of decedents in an orphans’ court of the State;
(ii) preparing an instrument that affects title to real estate;
(iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or
(iv) giving advice about a case that is or may be filed in a court.
The definition above includes, in paragraph (h)(1)(iii), any services defined as practicing law by the Court of Appeals of Maryland. The Court has defined the practice of law very broadly. See Kennedy vs. Bar Ass’n of Montgomery County (316 Md. 646), which states, in part:
[A]dvising clients by applying legal principles to the client’s problem is practicing law. When Kennedy, who is unadmitted in Maryland, set up his principal office for the practice of law in Maryland and began advising clients and preparing legal documents for them from that office, he engaged in the unauthorized practice of law. This is so whether the legal principles he was applying were established by the law of Montgomery County, the State of
Maryland, some other state of the United States, the United States of America, or a foreign nation (316 Md. 663).
Additionally, Rule 701 of the Rules of the U.S. District Court of the District of Maryland requires your attention, should your immigration practice include activity in that court. Rule 701 provides, in part, that:
…[A]n attorney is qualified for admission to the bar of this District if the attorney is and continuously remains a member in good standing of the highest court of any State in which the attorney maintains his or her principal law office.
Further, Rule 701(d), states that:
…[A]n attorney who is a not a member of the Maryland Bar is not qualified for admission to the bar of this District if the attorney maintains any law office in Maryland.
In the federal system, the US Citizenship and Immigration Services (USCIS) and Executive Office of Immigration Review (EOIR) are the administrative agencies that hear cases involving immigration matters. Appeals are heard before the Board of Immigration Appeals (BIA). You are responsible for compliance with all of the rules of these courts and tribunals, as well as the rules promulgated by them governing professional conduct and disciplinary proceedings. It appears these rules conform in many respects to the ABA Model Rules of Professional Conduct, and are located, in part, at 8 CFR §1003.102 and 8 CFR §1003.2. Further, if you open an office within the State, any complaints made to the Attorney Grievance Commission may be investigated and/or referred to the appropriate federal authority or to any jurisdiction in which you are licensed.
Should you find a specific statute or other law which permits you to practice immigration in Maryland, you are advised to carefully examine Rules 7.1-7.4 regarding advertisement and the legal services you provide, while making it abundantly clear in all communications that you are licensed to practice law in Puerto Rico, but not licensed by the State of Maryland and that you may not appear in Maryland State courts.
It is further advised that you refer to a recent opinion of the Maryland Court of Appeals, filed February 12, 2012, which ruled on the sanctions given to an attorney who was a member of the New York Bar, who failed to limit his Montgomery County practice to immigration law only. Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 6, Sept. Term.
In summary, the Committee opines that as long as you are in compliance with Rule 5.5 and are authorized under federal law to practice immigration law, you may open an office in Maryland.
You must be careful not to run afoul of the broad definition of the unauthorized practice of law in the state of Maryland, and must follow the rules of professional conduct promulgated by the tribunals you appear before. Further, we additionally advise that you take extreme efforts to ensure that your clients and potential clients are aware that you are not licensed by the state of Maryland, and that you may not appear in Maryland state courts or provide legal advice in areas that are not strictly in the realm of immigration law.
REFERENCES:
Sperry v. Florida, 373 U.S. 279
Maryland Rules of Professional Conduct 5.5, 7.1, 7.2,7.3,7.4
Kennedy vs. Bar Ass’n of Montgomery County, 316 Md. 646
Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 6, Sept. Term, Filed February 22, 2012.
2011 Md. code Ann., Bus. Occ. & Prof, §§ 10-101
Ethics dockets docket 2002-09, 2007-06
Rule 701 of the Rules of the U.S. District Court of the District of Maryland
Code of Federal Regulations: 8 CFR §1292.1, 8 CFR §292.1(a)(1), 8 CFR §1003.102, 8 CFR §1003.
CRS Report for Congress, “Legal Ethics in Immigration Matters: Legal Representation and Unauthorized Practice of Law,” Margaret Mikyung Lee, September 18, 2009. www.crs.gov
ASSIGNED TO: John Giannetti Jr.
DATE ASSIGNED: March 27, 2012
DATE FINAL : May 9, 2012