What are ethics issues for lawyers practicing remotely from a different state during the pandemic?

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During the COVID-19 pandemic, more and more lawyers have worked remotely from home and practiced law primarily through electronic means. Some of these lawyers live in a different state than where they are licensed to practice law.

The ABA Standing Committee on Ethics and Professional Responsibility’s latest formal ethics opinion, released Wednesday, explains that such a practice does not present problems under the ABA Model Rules of Professional Conduct, as long as the lawyer does not hold themselves out or advertise that they are licensed to practice law in a jurisdiction in which they are not licensed.

An ABA press release is here.

The concern centers on the unauthorized practice of law, a subject addressed by ABA Model Rule 5.5, which generally prohibits the unauthorized practice of law.

Further, Rule 5.5(b)(1) prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence” in a jurisdiction where the lawyer is not licensed to practice law. Rule 5.5(b)(2) prohibits a lawyer from “hold[ing] out to the public” or representing that they are licensed to practice law in a jurisdiction to which they are not licensed.

But Formal Opinion 495 explains that a lawyer does not have a “systematic” presence in a jurisdiction merely by their physical presence in that state.

“The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law,” the opinion reads. But the opinion cautions that “a lawyer practicing remotely from a local jurisdiction may not state or imply that the lawyer is licensed to practice law in the local jurisdiction.”

The opinion cites ethics determinations from Maine and Utah that have reached similar conclusions. It quotes a 2019 Utah ethics opinion that explains the situation concisely: “What interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is the same—none.”

The ABA standing committee qualifies its conclusion, noting that “it is not this committee’s purview to determine matters of law,” and that “this committee will not opine whether working remotely by practicing the law of one’s licensing jurisdiction in a particular jurisdiction where one is not licensed constitutes the unauthorized practice of law under the law of that jurisdiction.”

Thus, if a particular jurisdiction had by statute, rule or judicial opinion determined that a lawyer working remotely while physically located in that particular jurisdiction constitutes the unauthorized practice of law, then Model Rule 5.5(a) would prohibit such conduct.

Rule 5.5(a) provides in pertinent part: A “lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.”

The clear conclusion of Formal Opinion 495 is that the purpose of Model Rule 5.5—protecting the public from unlicensed and unqualified lawyers—is not served by prohibiting lawyers from practicing law in their licensed jurisdictions simply because they are physically located in another jurisdiction where they are in essence “invisible as a lawyer to a local jurisdiction.”

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