Working Remotely: The Likelihood of Violating the Rules is Not as Remote as You May Think
The pandemic has created a great many challenges for everyone, including lawyers. But for lawyers, it has created some unique additional issues. One question which has arisen is whether a lawyer is impermissibly practicing law when working remotely from a jurisdiction in which she is not licensed. I know, right?
Just when you thought you had conquered COVID-19 by successfully avoiding infection, establishing a home office, adjusting your workflow to accommodate closed or limited office availability, and now this wrinkle. The good news is that the American Bar Association (“ABA”) has issued some guidance. The bad news is the answer invariably is “it depends.”
On December 16, 2020, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 495. It provides that a lawyer physically present in a jurisdiction in which she is not licensed, which has not determined such practice is unauthorized, may practice if she meets the following guidelines:
Does not hold herself out as being licensed to practice in that local jurisdiction;
Does not advertise or “hold out” as having an office in that local jurisdiction; and
Does not provide or offer to provide legal services in that local jurisdiction.
The opinion adds that a lawyer should not provide local contact information in that unlicensed jurisdiction on websites, letterhead, business cards or other advertising as such would improperly establish a local office or local presence under the ABA Rules.
So, it depends. For a lawyer in such a situation, the most important consideration is the rules and opinions of the jurisdiction in which she is not licensed. Most bars have not addressed this issue from a pandemic or temporary standpoint, but virtually all bars have addressed the question of what it means to practice law in their jurisdiction. These are the opinions and rulings that should be reviewed. ABA Model Rule 5.5(b)(1) is a good place to start. It prohibits a lawyer from “establishing an office or other systematic and continuous presence” in a jurisdiction in which the lawyer is not licensed.
A few states have addressed this issue in formal opinions pre-pandemic, such as Maine and Utah. Both found that practicing law in a lawyer’s licensed jurisdiction from those states (where the lawyer was not admitted) did not violate their rules. The guidelines of Formal Opinion 495 are consistent with the opinions of these states and otherwise consistent with the Model Rules.
Why does it matter?
A violation of the rules of the local jurisdiction (of which you are not licensed) is most likely a violation of the rules of the jurisdiction where you are. ABA Model Rule 5.5 prohibits lawyers from engaging in the unauthorized practice of law – “a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.”
While this opinion certainly applies to temporary accommodations made during the pandemic, it has wider application. Many lawyers were practicing remotely before the pandemic, but many more joined their ranks after being forced to. And many will continue to work remotely even when they don’t have to. Some are even scouting for locations from which they might continue to practice remotely, such as a vacation spot on the beach or the mountains. Before you commit to that ideal getaway location, a little research is in order.
You must determine whether you can practice law from there without violating their rules and thus those that govern your practice. If not, you might have to add getting admitted to that jurisdiction to your getaway to-do list.