Unauthorized Practice of Law: What The Immigration Attorney Practicing Abroad Should Consider
By Sal Savatteri, Jr., Esq. and Shanni Alexandrovitz, Esq.
The U.S. immigration attorney seeking to establish a law practice abroad
has many issues to consider. These issues range from securing appropriate
local office space and staffing to developing a sustainable client-base and
maintaining professional community involvement. An issue that must also be
considered by the attorney is assuring that she/he is not in violation of the rules
regarding the unauthorized practice of law (UPL). In regard to this article, UPL is
defined as giving legal advice in a territorial jurisdiction where one is not
authorized to give legal advice.
From the U.S. immigration law context, the attorney must be aware of the
various laws, regulations and other guidance that address unauthorized practice
of law applicable to practice before the U.S. Department of State (DOS) and the
various agencies within the U.S. Department of Homeland Security (DHS),
including Citizenship and Immigration Services (CIS), Immigration Customs
Enforcement (ICE) and Customs and Border Protection (CBP), that address UPL
issues. For attorneys practicing before DOS, a starting point for research should
be the Foreign Affairs Manual (FAM) and for practice before DHS and its sub-
agencies, a starting point for research should be the INA, CFR and the guidance
provided within opinion letters and memos from DHS agencies. For the U.S.
licensed attorney, practice before the above agencies is likely allowed so long
the attorney is licensed and in good standing within a U.S. jurisdiction. For non-
U.S. licensed lawyers practicing before the above agencies, the lawyer should
carefully assess any limitations and/or preclusions on practice before the
agencies.
For the U.S. licensed attorney practicing abroad, or for that matter a non-
U.S. licensed lawyer practicing in a foreign jurisdiction, the analysis becomes
more complex. It is important to recall that each local jurisdiction has its own
rules regarding UPL. For example, the rules regarding UPL in Germany likely
vary from the rules regarding UPL in Turkey. That being said, the attorney
practicing in a foreign jurisdiction, as a prerequisite to practicing should consult
with the local licensing authority and the foreign jurisdiction rules, to determine
permitted and non-permitted activities for a foreign lawyer practicing within the
jurisdiction. The attorney may also want to consider consulting with a licensed
local attorney to attain a formal legal opinion on the issue.
Although the U.S. licensed attorney may only limit her/his practice to U.S.
immigration law unless licensed in the local jurisdiction, the local jurisdiction may
have specific rules involving such attorneys holding themselves out to the public
as experts in the law, as well as regarding advertising of legal services. In the
same regard, the U.S. attorney must also determine whether she/he is subject to
any of the rules of professional responsibility of the local jurisdiction and those
rules' applicability to the U.S. attorney practicing abroad. The attorney must also
be cognizant of conflicts that may arise between her/his home jurisdiction ethics
rules and those of the local jurisdiction. Violations by the U.S. attorney of the
UPL rules and/or ethical rules can subject the attorney to sanctions in the foreign
(local) jurisdiction as well as in her/his home jurisdiction.
It is important to remember that the controlling purpose of all UPL laws,
rules and decisions, regardless of whether they are U.S. based or otherwise, is to
protect the public against persons inexperienced and unlearned in legal matters
from attempting to perform legal services. It is the responsibility of the attorney
practicing abroad to assure he/she is compliant with UPL rules in the local
jurisdiction as well as UPL rules as they relate to U.S. immigration practice.
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The AILA Rome District Chapter Ethics/UPL Committee's purpose, in part, is to
help educate Chapter members regarding ethics and UPL issues. Although the
committee does not provide advice regarding such matters, the committee is
pleased to serve as an educational resource to members. Should you wish to
contact the AILA RDC Ethics/UPL Committee Chair, Sal Savatteri, Jr., Esq.,
please feel free to do so at sal@savatterilawfirm.com.