The Inquirer states that he is a member of good standing of the Supreme Court of Pennsylvania as well as of the United States Supreme Court. The Inquirer practices in the field of International Adoption Law providing adoption placement, legal representation and travel escort to prospective parents (from throughout the United States) who seek to adopt a foreign-born child. The Inquirer represents his clients before the United States Department of Justice Immigration and Naturalization Service ("INS"), in which it is assumed that the Inquirer is admitted to practice. The Inquirer believes that, as a member of the United States Supreme Court, he is permitted to represent American residents in any state in such matters. However, the Inquirer has not been able to ascertain this from the U.S. Supreme Court Admissions Office. The Inquirer asks whether he is authorized to practice in Pennsylvania and other jurisdictions.
As a member of the Bar of the Commonwealth of Pennsylvania, the Inquirer is permitted to practice in Pennsylvania. Whether the Inquirer is able to practice in the field of International Adoption Law in other jurisdictions, however, requires the Inquirer to ascertain the ethical and legal requirements of each jurisdiction. Moreover, pursuant to amended Rule 8.5 of the Pennsylvania Rules of Professional Conduct, a lawyer admitted in the Commonwealth of Pennsylvania is subject to the disciplinary authority of the Commonwealth "regardless of where the lawyer's conduct occurs." Where the conduct occurs in another jurisdiction, amended Rule 8.5 specifies the law to be applied:
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a proceeding in a court or agency before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court or agency sits, unless the rules of the court or agency provide otherwise....1
Here, even though the conduct is in connection with a proceeding in an agency (INS) before which the Inquirer has been admitted to practice, the Inquirer is subject to the disciplinary authority of the Commonwealth of Pennsylvania for any breaches of his ethical obligations under rules promulgated by the INS.2 The Committee advises that, before proceeding further, the Inquirer ascertain his obligations under the INS's rules and act accordingly.
Finally, the Committee has concerns regarding Pennsylvania Rule of Professional Conduct 5.5(b) which provides that an attorney violates the Rule if he engages in conduct in another jurisdiction that constitutes a "violation of regulations of the profession in that jurisdiction." Engaging in conduct in another state, where such conduct constitutes the unauthorized practice of law would constitute a violation of Rule 5.5(b). As such the inquirer needs to make sure that his conduct does not violate such laws in the states in which he is appearing before the INS.
1. Rule 8.5(b)(2) sets forth the choice of law rule where the attorney's conduct is not "in connection with a proceeding in a court or agency before which a lawyer has been admitted to practice (either generally or for the purposes of that proceeding)." This subsection of Rule 8.5 is inapplicable for the reasons described herein.
2. Rule 8.5 appears facially ambiguous as to whether the agency's rules, or the rules of the jurisdiction in which the agency sits, apply when the conduct occurs outside the Commonwealth. Rule 8.5 and its comments, however, make it clear that when the conduct is in connection with a proceeding in an agency, it is the agency's rules that apply. See Rule 8.5, comment.