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ATTORNEY [ licensed to practice in KOREA, U.S.A., ILLINOIS ] LEE, JAE WOOK
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Start →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 states 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 ס 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 Bars 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. Senanayakes 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), affd, 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 Assn 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 states 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 attorneys First Amendment rights.110 The court found that the attorneys 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 defendants 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 bars 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. ← End |
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