Remote practice from home in Florida isn't unauthorized practice, advisory opinion says

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A New Jersey lawyer’s remote practice from his home in Florida does not constitute the unlicensed practice of law in Florida, according to an advisory ethics opinion approved May 20 by the Florida Supreme Court.

Lawyer Thomas Restaino had sought the advisory opinion, report Law360 and the Legal Profession Blog.

Restaino wanted to know whether he could work on federal intellectual property matters for a New Jersey-based law firm, Tong Rea Bentley & Kim.

The New Jersey law firm did not have a place of business or office in Florida, and Restaino did not have a public presence or profile as a Florida lawyer, according to the ethics opinion. He does not have a law license in Florida and would not represent or solicit any Florida clients. He would not advise on Florida law.

“We’ve tried to set up and utilize the technology in a fashion that essentially places me virtually in New Jersey,” Restaino had testified at a public hearing in February 2020. “But for the fact that I’m physically sitting in a chair in a bedroom in Florida, every other aspect of what I do is no different than where I’m physically sitting in a chair in Eatontown, New Jersey, and that’s the way I tried to and have structured it so that the public sees a presence in, in Eatontown, New Jersey and no other presence.”

The ethics opinion, drafted by the Florida Bar’s Standing Committee on the Unlicensed Practice of Law, said the facts of the case do not implicate the unlicensed practice of law in Florida.

“All indicia point to petitioner’s practice of law as being in New Jersey, not in Florida,” the ethics opinion said. “It is the opinion of the standing committee that based on the facts set forth in his request and hearing testimony, and since there is no attempt by petitioner or his firm to create a public presence in Florida, petitioner does not have a presence in Florida for the practice of law.”

The ethics opinion noted the written testimony of a lawyer licensed in Florida who said he thought more lawyers will be working remotely in the future.

“So long as the attorney is not practicing Florida law, is not advertising that he practices Florida law, and creates no public presence or profile as a Florida attorney, then there is no UPL simply because the attorney is physically located in Florida,” wrote the attorney, Salomé J. Zikakis.

The standing committee opinion said it found that Zikakis’ testimony “particularly persuasive” in light of the COVID-19 pandemic.

The ABA Standing Committee on Ethics and Professional Responsibility has also released an ethics opinion on remote work. The December opinion said remote practice doesn’t violate ABA model ethics rules when lawyers do not hold themselves out or advertise that they are licensed to practice law in a jurisdiction in which they are not licensed.

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