Is this the unauthorized practice of law in New York?

December 6, 2007 8:52 PM

Is helping family from New York prepare wills and trusts the "unauthorized practice of law" if I'm an attorney from a different state?

I'm an attorney licensed to practice in MA. I have family in NY who wants me to write wills and trusts for them. Can I do so?

I read Judiciary Law Sec. 478 and 484 regarding the unauthorized practice of law and also the rules regarding pro hac vice. There seems to be a gray area between being able to petition the court to represent a client in NY even though you're not an attorney in NY and not being allowed to hold yourself out as an attorney in NY.

I read the rules as saying that a non-attorney or an attorney from another state cannot "advertise" their services in the state of NY without being licensed in NY. However, I am not advertising myself as a NY attorney nor am I trying to get clients from NY.

How is preparing wills and trusts for family in NY different than being admitted pro hac vice (for this case only)? Any NY attorneys want to give me some advice?

posted by pikaboy202 to Law & Government (7 answers total)

Can you associate with a NY attorney for drafting the wills and trusts? I think then the NY attorney takes responsibility for your work, so it might be hard to find a willing attorney. It's been a while since I took my professional responsibility class so my memory of the issue might be off a bit. [I am a 3L.]
posted by stopgap at 9:09 PM on December 6, 2007

I am not a lawyer and not a New Yorker. However, my understanding is that transactional work is somewhat different from court appearances pro hac vice. For example, it would be completely legal and kosher to write a will in Massachusetts, as an attorney in the state of Massachusetts, and just keep in mind the issues related to New York tax and probate law.
I hope a NY lawyer weighs in, because I'm curious to hear how the NY Bar is about enforcement. I'm only talking about the general principal, and I know that enforcement of rules varies wildly from state to state.
posted by katemonster at 9:19 PM on December 6, 2007

Doesn't your state bar have a hotline for questions like this?
posted by bitdamaged at 9:23 PM on December 6, 2007

If you're unclear to the point of asking in a MetaFilter forum, you need to submit this question to the NYSBA.

Check the ethics opinions here. If there isn't one answering your question, go here and call Kit McNary, or send your question to [e-mail] to get an official answer.
posted by lockestockbarrel at 9:34 PM on December 6, 2007

I'm not a lawyer, so this advice is mostly speculation, but if you're doing it for family, without charging, it seems ethical so long as you're advising them to consult a NY lawyer afterwards for some proof-reading and such. I know lawyers have to be careful to a certain degree, but in this situation, you're not really acting as their lawyer, you're imparting a bit of knowledge to a family member off the books.
posted by explosion at 6:44 AM on December 7, 2007

Response by poster: I did check the ethics opinions and there was nothing there that answers my question.

Further, I called Kit McNary to ask her and she directed that I email the NYSBA. So that is what I did, and they responded by saying that they can't answer a question of law, only of ethics.

Utterly useless.
posted by pikaboy202 at 9:04 AM on December 7, 2007

Wow. I can't answer your question, but you totally made my day. It's utterly hilarious that the NYSBA doesn't recognize an exclusion set between ethics and legality. Can you email that person back and get a list of which illegal things are ethical for you to do?
posted by Caviar at 11:09 AM on December 7, 2007