Ethics Opinion 278

Partnership With Foreign Lawyer

A lawyer who is licensed to practice in the District of Columbia may join in a partnership or in other forms of professional association with a foreign lawyer who is not licensed to practice in any jurisdiction in the United States so long as the partnership or association will not compromise the D.C. lawyer’s ability to uphold ethical standards.

Applicable Rules

• Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer)
• Rule 5.5 (Unauthorized Practice of Law)
• Rule 7.5(b) (Firm Names and Letterhead)
• Rule 7.5(d) (Implying Practice in a Partnership)

Inquiry

A member of the D.C. Bar inquires whether, under the D.C. Rules of Professional Conduct, he and other members of his firm may join in a partnership to practice law with a lawyer licensed to practice law only in Sweden. The lawyer licensed in Sweden will be resident and practicing in the firm’s London office, which, the inquiry asserts, the lawyer may do in accordance with the rules of practice governing the provision of legal services in the United Kingdom.

This inquiry requires us to determine whether a member of the D.C. Bar may practice law in a partnership or other form of professional association with a foreign lawyer who is licensed to practice law in a non-U.S. jurisdiction but is not licensed to practice law in any jurisdiction in the United States.

Discussion

In the United States multi-jurisdictional law firm partnerships—formed by attorneys licensed to practice and physically located in more than one state—are accepted without question. As the practice of law increasingly assumes an international dimension, it is becoming equally commonplace to encounter multinational law firm partnerships and other forms of professional associations that cross international borders. Because of their international scope, these partnerships may involve affiliations with attorneys licensed only by jurisdictions outside the United States.

Just as our ethical standards have evolved to permit multi-jurisdictional law partnerships involving U.S. lawyers, they also, with appropriate safeguards, similarly accommodate partnerships or other forms of professional association with foreign lawyers. For the reasons explained below, we conclude that members of the D.C. Bar may practice law in partnership with foreign lawyers who are not licensed in any jurisdiction in the United States so long as appropriate steps are taken to ensure the association will not compromise the D.C. Bar member’s ability to uphold ethical standards.¹

In this jurisdiction, we have long accepted, without ever expressly addressing the issue, the existence of partnerships between D.C. Bar members and attorneys who are admitted only in U.S. jurisdictions other than D.C. Such associations are permissible, however, only to the extent that they do not impair the D.C. Bar member’s ability and obligation to uphold ethical standards. For example, when a D.C. lawyer practices law in association with others, he or she must ensure that all individuals involved in providing legal services adhere to fundamental ethical requirements such as client confidentiality. See, e.g., Rules 5.1, 5.2, 5.3.

The same considerations are equally applicable in reviewing the ethical implications of partnerships with foreign attorneys who are not licensed to practice in any U.S. jurisdiction.² The critical inquiry will be whether any aspect of the association is likely to impair the D.C. attorney’s ability to satisfy the applicable ethical requirements that govern the delivery of legal services.

In this regard, it would be necessary to consider the general similarity of the foreign lawyer’s educational requirements as well as the compatibility of the standards of professional conduct and discipline that govern the foreign lawyer’s provision of legal services. If the foreign lawyer’s education and training were materially less than that of a U.S. lawyer or if the professional standards governing the foreign lawyer’s conduct were so incompatible with those established by the D.C. Bar, any partnership with such an attorney might impair the D.C. lawyer’s ability to uphold the D.C. Rules of Professional Conduct or to adhere to ethical standards such as the need to maintain client confidentiality and to avoid conflicts of interest. Cf. Rule 5.1(a) (law firm partner “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct”).

This is an inquiry that must be undertaken on a case by case basis. By identifying issues relating to client confidentiality and conflicts of interest as areas of special concern, we do not mean to suggest that these are the only ethical issues that need to be considered. Rather, the D.C. attorney must ensure that the proposed association does not in any way impair or frustrate his ability to meet his ethical obligations.

Another basic requirement that must be satisfied in forming any professional association with a foreign licensed attorney is that the association not conflict with any of the D.C. attorney’s ethical obligations. Lawyers not admitted to practice in the District of Columbia are, of course, subject to restrictions against the unauthorized practice of law in this jurisdiction (D.C. App. R. 49), and Rule 5.5(b) prohibits D.C. lawyers from assisting a person who is not a member of the bar in the performance of an activity constituting the unauthorized practice of law. Any partnership with a foreign attorney must comply with these obligations.

In addition, D.C. lawyers and law firms must continue to satisfy the ethical requirements relating to use of letterheads and firm names. See Rule 7.5(b) (“a law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.”). Thus, like any multi-jurisdictional partnership, a partnership with foreign attorneys must ensure that its letterhead identifies appropriately the jurisdictions in which individual attorneys are licensed to practice.

Finally, members of the D.C. Bar may state or imply that they practice in a partnership or other organization only when that is the fact. Rule 7.5(d). In forming a partnership with a foreign attorney, the D.C. lawyer should confirm, both as a matter of U.S. and foreign law, that the relationship created is properly described and held out to clients.

In reaching the conclusion that a D.C. lawyer may join in a partnership or other form of professional association with a foreign lawyer not licensed to practice in any jurisdiction in the United States so long as the partnership or association will not compromise the D.C. lawyer’s ability to uphold ethical standards, we join several other jurisdictions that have considered similar issues and reached the same result. See, e.g., N.Y. State Op. 658 (Jan. 24, 1997) (lawyer may form partnership or otherwise associate with non-Utah lawyers who are authorized to practice law in other jurisdictions within the United States or to engage in the functional equivalent in a foreign country). We are aware of no jurisdiction that has concluded otherwise.

Inquiry No. 97-7-33
Adopted: February 18, 1998

1. This opinion assumes without deciding that the proposed arrangement described in the inquiry complies with all aspects of D.C. substantive law and with applicable Swedish and United Kingdom law and ethical rules; it therefore addresses only the ethical issues under the D.C. Rules of Professional Conduct presented by the proposed arrangement.
2. Of course, a foreign attorney who also is admitted to practice in one or more U.S. jurisdictions is subject to the supervisory authority and disciplinary system of the U.S. jurisdiction(s) in which he is admitted. Because of this fact, it is unnecessary to consider such attorneys as “foreign” lawyers for purposes of this analysis.