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Attorney(KOREA, U.S.A., IL.)   LEE, JAE WOOK'S OFFICE →   →
Attorney LEE, JAE WOOK'S OFFICE
[ LICENSED TO PRACTICE IN KOREA, U.S.A., ILLINOIS ]
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[FOR FOREIGNERS - ENGLISH LANGUAGE LEGAL SERVICES in Counseling, Application and LITIGATION & TRIAL IN COURTS and TRIBUNALS in KOREA]
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↓  C. Immigration is Not Solely the Practice of Federal Law
Nonetheless, many states bar federal immigration law practice
by out-of-state licensed attorneys for the stated reason of protecting
public interests, increasing professionalism, and punishing
violators.87 A state’s disciplinary rules only bind state-licensed
attorneys, so an attorney licensed outside of that state would not be
bound by those rules.88 The issue of fairness arises, as the rules are
not the same for all attorneys practicing in that state. State-licensed
attorneys are subject to higher standards set by the state bar while
corresponding federal standards are very low or virtually nonexistent.

Additionally, states cannot be silent when the practice of an
out-of-state licensed attorney involves state law. Clearly,
immigration law cannot be called “pure” federal law as long as
practice questions involve a wide range of state laws. In 2002, a
New York licensed lawyer who had established an immigration law
84. Id.
85. Id.
86. ROBERT C. DIVINE & BLAKE CHISAM, IMMIGRATION PRACTICE §§ 2-1–3-1
(2006–07). In the very complex area of immigration law, practitioners engage in
practice before the Federal Bureau of Investigation, Department of State,
American consuls abroad, Office of Diplomatic Security, U.S. Passport Office,
Department of Labor, Department of Agriculture, Center for Disease Control,
Department of Health and Human Services, U.S. Coast Guard, Bureau of
Immigration and Customs Enforcement, Offices of the Governors of the several
states, Boards of Pardons and Paroles, and other federal agencies, as well as
concurrent state law.
87. See, e.g., CAL. BUS. & PROF. CODE § 6125 (2008); COLO. REV. STAT. ANN. § 12-
5-101 (2008).
88. See Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949
P.2d 1 (Cal. 1998) (denying fee recovery to out-of-state lawyers but not disciplining
them under the unauthorized practice statute).
15
Kuck and Gorinshteyn: Unauthorized Practice of Immigration Law in the Context of Suprem
Published by Mitchell Hamline Open Access, 2008
2008] UNAUTHORIZED PRACTICE IN SPERRY V. FLORIDA 355
practice in Houston was sued by the Texas Bar’s Unauthorized
Practice of Law Committee.89 The Committee alleged that the
attorney, Ms. Senanayake, violated the Texas Unauthorized
Practice of Law Statute by practicing law in Texas without a
license.90 The Committee was concerned about the effect of Texas
family and criminal law on Ms. Senanayake’s clients’ immigration
cases.91 Furthermore, the Committee raised the issue that Ms.
Senanayake could not be controlled by either the Texas bar or by
federal agencies.92 The case was ultimately dropped by the
Committee.93
In comparison, an article authored by the Deputy Director and
General Counsel94 of the Oregon State Bar concluded that there is
no clear answer to the question of whether an out-of-state attorney
can establish a federal practice in Oregon without taking and
passing the Oregon bar exam. After careful review of relevant case
law,95 the Director observed that the “cases are a strong basis for
concluding that an out-of-state lawyer cannot set up a bankruptcy
practice in a state he is not licensed in even if the lawyer is admitted
to the bar of the federal court in that state.”96 The Director
strongly encouraged attorneys seeking to practice in Oregon to
take the bar exam so as to avoid unauthorized practice of law
issues.97
Even more striking, the Maryland Court of Appeals held that
the unauthorized practice of law is “not limited to practice utilizing
the common law and statutes of Maryland.”98 Rather, the court
held that the unauthorized practice of law includes any advice to
89. Cyrus D. Mehta, Emerging Issues in Dual Representation and Unauthorized
Practice of Law, 1659 PLI/CORP 237 (2008), available at: http://www.pli.edu/
emktg/all_ star/Dual_Rep22.doc.
90. John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right
to Practice, 18 TEX. LAW. 24 (2002).
91. Id.
92. Id.
93. Mehta, supra note 89.
94. George A. Riemer is Deputy Director and General Counsel of the Oregon
State Bar.
95. Riemer, supra note 66, at 32 (examining In re Desilets, 247 B.R. 660 (Bankr.
W.D. Mich 2000), aff’d, Rittenhouse v. Delta Home Improvement, Inc., 255 B.R.
294 (W.D. Mich. 2000)).
96. Riemer, supra note 66, at 32.
97. Riemer, supra note 66.
98. Kennedy v. Bar Ass’n of Montgomery County, Inc., 561 A.2d 200, 208
(Md. 1989).
16
William Mitchell Law Review, Vol. 35, Iss. 1 [2008], Art. 5
http://open.mitchellhamline.edu/wmlr/vol35/iss1/5
356 WILLIAM MITCHELL LAW REVIEW [Vol. 35:1
clients and preparation of any legal documents, even on the basis
of federal or foreign law, by an attorney not admitted to practice in
the state whose principal office is in the state.99 The court also
stated, “[t]he goal of the prohibition against unauthorized practice
is to protect the public from being preyed upon by those not
competent to practice law from incompetent, unethical, or
irresponsible representation.”100
The Maryland Court of Appeals was deciding a case involving a
member of the District of Columbia bar who was admitted to
practice in the federal court in Maryland but not in the Maryland
state bar.101 The attorney contended that he was free to practice
“federal” and “non-Maryland” law.102 At the outset the court made
it clear that the case involved a person who was “not admitted to
practice law in Maryland holding himself out to the public as an
attorney engaged in the general practice of law in Maryland from a
principal office in Maryland.”103 The court found this to be
unauthorized practice of law.104 “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.”105

The Sperry argument failed here principally because the
unauthorized practice of law involved in the case was not limited to
the practice of federal law.106
Other state courts have also shown their negative treatment of
out-of-state licensed attorneys through advertising restrictions. A
New York licensed attorney brought a case against the Florida Bar
challenging the state’s advertising restrictions for out-of-state
counsel.107 The Plaintiff claimed that he would be charged with
unauthorized practice of law if his advertisement stated either “New
York Legal Matters Only” or “Federal Administrative Practice” and
included an address for a Florida-based law office.108 He also
99. Id.
100. Id. at 207 (citing In re Application of R.G.S., 541 A.2d 977, 983 (1988)).
101. Id. at 200.
102. Id. at 203.
103. Id. at 207.
104. Id. at 208.
105. Id. at 208–09.
106. Id.
107. Gould v. Harkness, 470 F. Supp. 2d 1357 (S.D. Fla. 2006).
108. Id. at 1358.
17
Kuck and Gorinshteyn: Unauthorized Practice of Immigration Law in the Context of Suprem
Published by Mitchell Hamline Open Access, 2008
2008] UNAUTHORIZED PRACTICE IN SPERRY V. FLORIDA 357
argued that the advertising restrictions violated his First
Amendment rights.109 The U.S. District Court for the Southern
District of Florida, however, held that advertising restrictions for
out-of-state counsel did not violate the attorney’s First Amendment
rights.110 The court found that the attorney’s proposed
advertisement both concerned unlawful activity and misled.111
There was no state or federal law, rule, or regulation that allowed
non-licensed attorneys to engage in general federal administrative
practice in Florida.112
Another court in Florida found a New York-licensed attorney
committed unauthorized practice of law for advertising his
availability as an attorney in Miami telephone books, newspapers,
and television with the implication that he was authorized to
practice in Florida.113 The court held that the defendant had
knowingly created the impression that he was authorized to
practice in Florida on his own because the advertisements did not
indicate the defendant’s membership in the New York bar or his
limited immigration law area of practice.114 Therefore, the attorney
committed unauthorized practice of law.115
Clearly, as outlined in Sperry, states still have a substantial
interest in regulating the practice of law within state borders.116 In
the absence of federal legislation, states could validly prohibit nonstate-licensed
lawyers from engaging in federal administrative
practice immigration law.117
IV. CONCLUSION
Any attempt to practice law without admission to the state bar
can be considered as unauthorized practice of law. At first blush,
practicing federal immigration law is seen as a possible safe harbor
for an out-of-state attorney. The complexity of federal immigration
law and its impact on state laws, however, gives state bars a wide
range of options to bring complaints against attorneys not licensed
109. Id.
110. Id at 1360.
111. Id.
112. Id.
113. Florida Bar v. Kaiser, 397 So. 2d 1132, 1133 (Fla. 1981).
114. Id.
115. Id.
116. Sperry, 373 U.S. 383.
117. See id.
18
William Mitchell Law Review, Vol. 35, Iss. 1 [2008], Art. 5
http://open.mitchellhamline.edu/wmlr/vol35/iss1/5
358 WILLIAM MITCHELL LAW REVIEW [Vol. 35:1
in the state based on an unauthorized practice of law statute. Any
attorney, before establishing a practice in a state where he or she is
not licensed should familiarize himself or herself with that state
bar’s admission and rules for unauthorized practice of law. The
highest standards of the legal profession must be preserved. This is
possible only under strict supervision of the regulating authorities.
An attorney whose practice is not regulated becomes no better than
a notario. Rules are set for the legal profession not just to set
minimum standards of conduct, but to protect the clients, who
become the victims of unauthorized practitioners.


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