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Application of UPL Rules to U.S. Attorneys
관리자  (Homepage)
2016-05-05 12:44:01, 조회 : 421, 추천 : 118
Under the ABA Model Rules of Professional Conduct (“Rules”),

U.S. attorneys are prohibited
        a) from “practic[ing] law
                i) in a jurisdiction
                ii) in violation of the regulation
                        A) of the legal profession
                                I) in that jurisdiction.”17

In the global context,

this means that
        a) a U.S. attorney must refrain from practicing immigration law
                i) in a country
                        A) in which he is not licensed.

Given the variation
        a) in the regulation
                i) of immigration services
                        A) around the world,

1) this issue is a bit more nuanced
        a) than it may seem at first glance.

Foreign jurisdictions can generally be broken into three types.

First,

some foreign jurisdictions,
        a) such as Brazil,

1) take the position that
        a) the provision
                i) of immigration services

            is the practice of law and
           must be carried out
                i) by an attorney licensed
                        A) in that jurisdiction.

Second,

some jurisdictions allow for non-attorneys
        a) to provide immigration services

1) if they meet certain licensing standards.

For instance,

        a) Australia18,
        b) Canada19 and
        c) the United Kingdom20

1) all permit non-attorneys
        a) to provide immigration services
2) if they are properly licensed.

Third,

other jurisdictions,
        a) such as Russia21,

1) do not consider provision of immigration services
        a) to be the practice of law and
2) do not impose any licensing
        a) standards or
        b) requirements.

Therefore,

a U.S. attorney
        a) admitted and licensed only in the United States

1) would violate Rule 5.5
        a) by providing immigration services
                i) in the first two types of jurisdictions
                ii) but not in the third.

However,

a U.S. attorney
        a) trying to provide immigration services
                i) in a jurisdiction
                        A) such as Russia

1) could run into trouble
        a) with the ethical rules
                i) regarding provision of competent counsel, 22
2) unless she spent significant time
        a) learning the law and practice.

Even in permissive jurisdictions

1) it is advisable
        a) to collaborate with a qualified local advisor.




11 The Florida Bar, Op. 07-2 (January 18, 2008)(“an attorney must be mindful of, and receive appropriate and sufficient assurances relative to” the handling of confidential data by foreign attorneys and paralegals).
12 For discussion of duties of confidentiality in various jurisdictions see: Xu Xi, A Comparative Study of Lawyers’ Ethics in the U.S. and PRC, Tsinghua China Law Review, Vol. 1:46 (July 2009), available at
www.tsinghuachinalawreview.org/articles/0101_Xu.htm, Karandeep Makkar, Client Confidentiality and Lawyer- Client Privilege: A Study of Indian, American and English Laws, Hidayatullah Nat’l Law Univ. (December 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722569.
13 Some jurisdictions, including Australia, Canada and the UK, allow non-attorneys who meet certain requirements to advise on immigration matters.
14 See Colorado Bar Ass’n, Formal Op. 121 (May 17, 2008)(surveying state bar opinions on the requirement of disclosure and client consent when confidential information is sent to foreign attorneys, paralegals or other support
staff).
15 The Florida Bar, Op. 07-2 (Jan. 18, 2008)(considering duty of confidentiality in the context of outsourcing legal services overseas); The Ass’n of the Bar of the City of NY, Formal Op. 2006-3 (August 2006)(considering duty of
confidentiality in the context of outsourcing legal services overseas).
16 The Ass’n of the Bar of the city of NY, Formal Op. 2006-3 (Aug. 2006) (recommending that attorneys enter into
“contractual provisions addressing confidentiality and remedies in the event of breach” and also provide periodic reminders regarding the duty of confidentiality).



In addition to running afoul
        a) of Rules
                i) 1.1 and
                ii) 5.5,

1) a U.S. attorney
        a) engaging in unauthorized practice

   could also be subject to penalties
        a) under the law of the foreign jurisdiction.

Again,

there is significant variation
        a) across jurisdictions
        b) on unauthorized practice
                i) rules and
                ii) penalties.

Some jurisdictions,
        a) such as Canada23 and New Zealand24,

1) have very specific prohibitions
        a) on the provision of immigration services
                i) by unlicensed persons.

In other jurisdictions

there are
        a) no specific prohibitions
                i) related to provision of immigration services,
        b) but rather general bar rules
                i) that prohibit the unauthorized practice of law
                        A) in any substantive area,
                                I) including immigration.





17 Model Rules of Prof’l Conduct R. 5.5, § a.
18 In Australia “registered migration agents” may represent applicants in filings with the Department of Immigration and Border Protection (DIBP). Migration agents must be registered with the Office of the Migration Agents
Registration Authority (MARA). See www.immi.gov.au/visas/migration-agents/agent-fact-sheet.pdf.
19 In Canada “authorized representatives” may represent applicants before Citizenship and Immigration Canada. Authorized representatives include: 1) lawyers and paralegals who are members in good standing of a Canadian
provincial or territorial law society, 2) notaries who are members in good standing of the Chambre des notaires du Québec and 3) immigration consultants who are members in good standing of the Immigration Consultants of Canada Regulatory Council. See Citizenship and Immigration Canada, www.cic.gc.ca/ english/information/representative/rep-who.asp.
20 In the UK regulated legal advisers or representatives may assist applicants in immigration matters with UK Visas
and Immigration (formerly the UK Border Agency). The Office of the Immigration Services Commissioner regulates advisers at three levels: Level 1 – Advice and Assistance, Level 2 – Casework, Level 3 – Advocacy and Representation. See https://oisc.homeoffice.gov.uk/how_to_find_a_regulated_immigration_adviser/
21 AILA Global Migration Section/Rome District Chapter Quarterly Call: Ethical Considerations in Working with
Foreign Counsel, December 2013, available at: http://agora.aila.org/product/detail/1814.
22 Model Rules of Prof’l Conduct R. 1.1.
23 The Act to Amend the Immigration and Refugee Protection Act, enacted on June 30, 2011, makes it an offense for anyone other than an authorized representative to represent applicants in immigration matters for a fee. Penalties for violations of the act include fines up to $100,000 and imprisonment for up to two years. See Backgrounder – Bill C-
35 – Highlights, available at www.cic.gc.ca/english/department/media/backgrounders/2011/2011-06-28a.asp.
24 The Immigration Advisors Licensing Act 2007 requires all persons providing immigration advice or representation to be properly licensed by the Immigration Advisors Authority unless exempt. Lawyers and
community law centre providers, among others, are exempt from the licensing requirement. Under the Act, unlicensed persons (who are not exempt) providing immigration advice may be subject to a fine of up to $100,000 or imprisonment for up to 7 years. Immigration Advisors Licensing Act 2007, Public Act 2007 No 15 (May 4,
2007), available at www.legislation.govt.nz/act/public/2007/0015/latest/DLM406945.html.


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세금과 법률
세금과 법률, 부동산경매, 토지수용, 이민(TAX & LAW, REAL ESTATE, IMMIGRATION)
변호사 이재욱(한국, 미국)
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세금과 법률, 부동산경매, 토지수용, 이민
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