Some ethical problems should be easy to solve. Temporary practice by a lawyer admitted in one jurisdiction but stuck in another during the pandemic should be one of them. Yet as the pandemic linger, and even expands, making travel increasingly risky, the realities of legal practice in 2020 brush up against the sometimes stringent rules preventing lawyers from practicing outside their home jurisdictions. Back in March, my colleague Tyler Maulsby covered a recent ethics opinion from the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law (the “D.C. Committee”), Opinion 24-20 (2020) (“Op.”), which cut through the red tape to make it easier for out-of-state lawyers sheltering in place in D.C. This post takes a closer look at Opinion 24-20 six months into the pandemic and why it should serve as a model for other jurisdictions.
The D.C. Committee confronted the question of under what circumstances may “persons who are not [D.C.] bar members . . . practice law from personal residences or other locations” under D.C.’s temporary practice rule, D.C. Court of Appeals Rule 49(c)(13). Op. at 1. The D.C. Committee started from the premise that “’[a] lawyer is engaged in the practice of law in [D.C.] when the lawyer provides legal advice from an office or location within the District,’” regardless of whether the clients are located in D.C., the lawyer is operating from an office or residence, or the lawyer is just practicing virtually (via computer, email, Zoom, etc.). Id., citing Official Comment to D.C. Ct. App. R. 49(b)(3). But the D.C. Committee also noted that D.C. has a broad temporary practice rule, allowing duly qualified lawyers admitted in other states or territories to “provide legal services in [D.C.] on an incidental or temporary basis.” Op. at 2, citing D.C. Ct. App. R. 49(c)(13). Citing the official commentary to this Rule, the D.C. Committee stated “’there is no absolute limit on the number or length of a lawyer’s visits to the District that makes the lawyer’s presence temporary,’” making clear that a lawyer can work for weeks or even months in D.C. on a case based in their home jurisdiction without engaging in unauthorized practice. Id. at 2. What matters most, in requiring D.C. admission, is whether the lawyer’s “principal place of business” is in D.C. Id. at 3.
So how does all this apply to practice during the pandemic? The D.C. Committee held that a lawyer from another jurisdiction who is sheltering in place in D.C. during the pandemic is engaged in only “incidental and temporary practice” in D.C., and thus not engaged in unauthorized practice, if four factors are met: the attorney is (1) practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdictions where the attorney is admitted to practice; (3) avoids using a DC address in any business document and does not otherwise hold themselves out as a DC attorney, and (4) does not regularly conduct in-person meetings with clients or third parties in D.C. Op. at 3. Thus, if an attorney residing in D.C. continues to hold herself out as an attorney admitted in and practicing from their home state, they may continue to physically practice from their D.C. residence for as long as the pandemic lasts.
This conclusion makes perfect sense but it raises another question: why is D.C., as far as we know, the only jurisdiction to issue an opinion on temporary practice during the pandemic? Many lawyers are in the same situation, sheltering in a “foreign” jurisdiction while continuing to hold themselves out as a practicing from their home jurisdictions. But apart from Florida and Utah, who issued broader rulings allowing this form of multijurisdictional practice, no other jurisdiction has addressed the problem, either by court rule or Bar opinion. To remove any uncertainties, jurisdictions must step forward to make their unauthorized practice rules conform to the harsh reality on the ground.
"If an attorney residing in D.C. continues to hold herself out as an attorney admitted in and practicing from their home state, they may continue to physically practice from their D.C. residence for as long as the pandemic lasts."