Opinion 400

Statement of Facts Discussion Conclusion

As pertinent herein, DR 2-102(D) provides as follows: A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

In a previous opinion, the Professional Ethics Committee determined that a law firm composed of lawyers licensed in different states may maintain offices under the same firm name in several states provided that (1) there is a resident partner licensed in each state where an office is maintained, and (2) all representations of the firm name to the public make clear those states in which the members of the firm are licensed to practice. Under that previous opinion, the Professional Ethics Committee determined that the scope of the firm's practice is immaterial, but that caution must be exercised to avoid the unauthorized practice of law by attorneys not licensed in each state. See Opinion 319 (October, 1966), 23 Baylor L.Rev. 845.

In rendering its decision, the Committee relied upon former Texas Canon 30, which provided that: "In the formation of partnerships for the practice of law, no person shall be admitted who is not a member of the legal profession, duly authorized to practice and amenable to professional discipline. No personal shall be held out as a practitioner or member who is not so admitted. In the selection and use of a firm name, no false, misleading, assumed or trade name shall be used."

The Professional Ethics Committee has examined the reasoning behind Opinion 319 and is of the opinion that the basic tenets set forth therein remain applicable under the guidelines of DR 2-102(D). Moreover, as pointed out in EC 2-11, the name under which a lawyer conducts his or her practice may be a factor in the client's selection process, and the Committee disagrees with ABA Informal Decision C-702 (February 24, 1964), in which it was held "that it would be improper to maintain an office in a state under a partnership name which includes the names of partners not licensed to practice in that state." Such a qualification is overly broad and contrary to long-standing practice, and is not required under the Code of Professional Responsibility. See DR 2- 102(D).

Therefore, the Committee holds that it is permissible for an out-of-state legal partnership to operate a Texas office under the same firm name, provided that the firm maintains a resident Texas licensed partner, and provided that the letterheads, listings, and all other representations of the firm make it clear which members and associates of the firm are not licensed to practice law in Texas. See Opinions 319 (October, 1966) 23 Baylor L.Rev. 845; Opinion 227 (March, 1959), 18 Baylor L.Rev. 308; ABA Informal Opinion 938 (May 7, 1966).

It should be noted that ABA Informal Opinion 1355 permits the multi-office interstate practice of law provided that the following six conditions are satisfied: (1) "so long as the limitations of each lawyer with respect to practice are indicated clearly to all clients and to the public;" (2) "only lawyers share in any divisions of fees and any sharing is based on the division of services or responsibilities;" (3) "the public must be apprised of the exact nature of affiliation;" (4) "each lawyer involved must carefully avoid any deception or misrepresentation;" (5) "the affiliation between the various practices should be the normal type of partnership or professional corporation which is customary in the jurisdiction involved;" and (6) "the letterhead should conform to ABA Model Code of Professional Responsibility DR 2-102(D)."

The Professional Ethics Committee of the State Bar of Texas agrees with and adheres to the guidelines set forth in ABA Informal Opinion 1355. Nonetheless, it is the opinion of the Professional Ethics Committee that it is the responsibility of the State Bar of Texas to insure that attorneys who practice law in this state be governed by the same standards and be amenable to the same disciplinary procedures of the Texas Code of Professional Responsibility as are resident attorneys. It would be detrimental to both the Bar and the lay public for out-of-state attorneys who may not be subject to the guidelines established for resident attorneys to be allowed to practice law in this forum.

Therefore, in order for an out-of-state partnership to practice law within the State of Texas, the partnership should have a resident agent for service of process, and must have a resident partner who is licensed to practice law in the State of Texas. The requirements will insure the same degree of commitment and obligation to the citizens of Texas on the part of an interstate law firm that is demanded of resident practitioners, and accordingly, will offer the public a protection which it might not otherwise have, to wit, an accountability to the general public by such firms. Moreover, the Professional Ethics Committee concludes that having a resident partner will assist in avoiding confusion and misleading of the general public and thus will aid in maintaining the integrity of the State Bar and in upholding the highest ideals of the Code of Professional Responsibility.

As a caveat, the Professional Ethics Committee does not intend for this Opinion to limit in any way the applicability or consideration of the State Bar Act, Tex. Rev. Civ. Stat. Ann. art. 320a-1, ∋10(a), which provides in pertinent part, as follows: All persons not members of the State Bar are prohibited from practicing law in this state except that the Supreme Court may promulgate rules and regulations prescribing the procedures for limited practice of law by attorneys licensed in another jurisdiction, . . .

In accordance with the State Bar Act, it is the opinion of the Professional Ethics Committee that any lawyer not licensed to practice law in the State of Texas is a "non-lawyer" unless otherwise sanctioned in accordance with the applicable rules promulgated by the Supreme Court of the State of Texas. Therefore, an out-of-state partnership which maintains an office in Texas with a resident Texas partner should be apprised of and follow the guidelines of DR 3-101, which provides as follows: (A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law. (B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulation of the profession in that jurisdiction.