Because of the COVID-19 crisis, lawyers across the country are now working from home. For many lawyers across the country, this may mean that they are physically located in a jurisdiction where they are not licensed to practice. For instance, in the Tri-State Area, thousands of New York lawyers live in neighboring states but are only admitted in New York. Similarly, in the District of Columbia, many lawyers who live within the city limits may not be admitted in D.C. and commute elsewhere for work.
At the same time, many jurisdictions' rules regarding the unauthorized practice of law place limits on how much time lawyers spend in jurisdictions where they are not admitted. For instance, a lawyer who is only admitted in New York cannot practice full-time in New Jersey, even if the lawyer is only practicing New York law. Similarly, a New York lawyer cannot practice full-time in the District of Columbia without becoming a member of the D.C. Bar. At a time when thousands of lawyers across the country must practice from home for the foreseeable future, this raises a serious question: are these lawyers committing the unauthorized practice of law?
In a recent Opinion, the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law offered helpful guidance to lawyers. Like many states, D.C.'s unauthorized practice of law rules contain an exception for "temporary practice," where a lawyer who is not admitted in D.C. is permitted (under certain circumstances) to practice temporarily in D.C. if the lawyer's conduct relates to his or her practice in the state where the lawyer is admitted and regularly practices. New York has a similar exception. The D.C. Opinion concluded that the requirement that lawyers work remotely as a result of the COVID-19 situation fits within the temporary practice exception. Specifically, the Opinion concluded:
[A]n attorney who is not a member of the District of Columbia bar may practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13) if the attorney (1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.
As noted, New York's temporary practice rule is similar to D.C.;s. In the absence of a similar advisory opinion from New York (which is unlikely for a variety of reasons), the D.C. Opinion provides helpful guidance for lawyers who may be dealing with a similar quandary.
At a time when thousands of lawyers across the country must practice from home for the foreseeable future, this raises a serious question: are these lawyers committing the unauthorized practice of law?