The pandemic brought about a welcome development in the legal profession: renewed focus on the "butt-in-seat" problem for lawyers who are practicing across state lines. As my colleague Ron Minkoff describes the butt-in-seat issue:
Imagine a New Jersey admitted attorney who works at a New Jersey law firm, practicing only New Jersey law. He wishes to begin a phased retirement and move to Florida. There, he intends to convert a room of his new retirement home into a law office, where he will continue to perform services for the New Jersey firm, using his laptop connected to the firm’s network. Despite physically working in Florida, he will not represent or solicit any Florida clients. Neither he nor the New Jersey firm will provide him with a public presence or profile in Florida, nor will he represent to anyone that he is a Florida attorney. He will remain on the New Jersey firm’s website, identified as affiliated with the firm, and all of his contact information will show him as practicing in New Jersey. Phone calls to his New Jersey number will automatically be forwarded to his Florida home office or his cell phone. As far as the world will know, he will remain a New Jersey lawyer.
In the above example, is the New Jersey lawyer "practicing" in New Jersey where he is licensed but not physically located or is he practicing in Florida where he lives but is not licensed. Over the past several years, many jurisdictions have struggled with this issue since a strict reading of the rules of professional conduct could lead to the conclusion that remote practice constitutes the unlicensed practice of law (UPL). But as COVID-19 caused lawyers across the country to pivot to remote practice, many jurisdictions scrambled to provide assurances that lawyers could do so without risking UPL enforcement.
Here is the current state of play:
On December 16, 2020 the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495, which addressed lawyers working remotely under ABA Model Rule 5.5. Opinion 495 concluded that unless a jurisdiction's UPL regulations state otherwise, a lawyer does not violate Model Rule 5.5 by working remotely in a jurisdiction where the lawyer is not licensed to practice so long as the lawyer does not hold himself or herself out as licensed to practice in that jurisdiction. The Opinion highlighted that the purpose of Model Rule 5.5 was “to protect the public from unlicensed and unqualified practitioners of law.” The opinion went on to state that “[t]hat purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.” Thus, the opinion concluded, as long as the lawyer's conduct is not considered to be UPL in the domiciled jurisdiction, remote practice from that jurisdiction is acceptable.
Similarly, on March 10, 2021, the ABA Committee issued Formal Opinion 498, which provides additional guidance on remote, virtual lawyering, including by listing potential problems with such work.
The Arizona Rules of Professional Conduct expressly permit remote practice. Arizona Rule of Professional Conduct 5.5(d) provides that an attorney admitted in another U.S. jurisdiction, who is not disbarred or suspended from practice in any jurisdiction, may provide legal services in Arizona that exclusively involve federal law, the law of another jurisdiction, or tribal law. Subsection (f) requires that the lawyer engaged in such multijurisdictional practice must advise clients that the lawyer is not admitted to practice in Arizona and must obtain the client's informed consent to such representation.
On August 12, 2021, the State Bar of California Standing Committee on Professional Responsibility and Conduct posted Formal Opinion No. 20-0004 on remote work and UPL for comment. (The commenting deadline is November 12, 2021). Much like the Wisconsin ethics opinion, the California opinion acknowledges the increase of attorneys remotely working driven both by technology and external circumstances that include COVID-19 and natural disasters such as the California fires.
The Opinion also highlighted the importance of mental health in a lawyer’s competence assessment:
In addition, a lawyer’s duty of competence includes the “mental, emotional, and physical ability reasonably necessary for the performance” of legal services. The health, personal (e.g., school closures, childcare, or other family responsibilities), or financial impacts of pandemics and other disasters may interfere with a lawyer’s physical, mental, or emotional ability to competently perform legal services.
While the opinion notes that UPL issues are implicated by remote work, it merely advises the lawyers to consult the RPC in the relevant jurisdictions. Perhaps giving a hint as to how the California State Bar thinks on the matter, in a footnote, it acknowledges the aforementioned D.C., Florida, Utah, and ABA ethics opinions.
On August 18, 2021, the San Francisco Bar Association issued Ethics Opinion 2021-1. The opinion addressed, among other things, whether it was considered UPL for lawyers licensed to practice law outside of California and working remotely from California. The opinion held that such remote work was permissible so long as those lawyers did not “advertise or otherwise hold himself or herself out as a licensed California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in California, and does not represent a California person or entity[.]”
On July 9, 2021, the Delaware State Bar Association Committee on Professional Ethics released Formal Opinion 2021-1, addressing whether Delaware attorneys may practice Delaware law while working remotely from another jurisdiction. The Committee held that Delaware licensed lawyers are permitted to practice Delaware law outside the state, so long as the local jurisdiction where the attorney is practicing does not have a statute, rule, case law, or opinion that prohibits such conduct.
In its reasoning for adopting the ABA’s analysis, the Committee stated that the purpose of Delaware’s version of model Rule 5.5 “is not served by barring Delaware-licensed lawyers from practicing the law of Delaware, for clients with matters in Delaware, just because such lawyers are physically located in a local jurisdiction where they are not licensed[.]” The Opinion also highlighted the pandemic and the emergency restrictions that have been imposed in light of same as factors in its analysis.
Hopefully, Delaware feels the same way for attorneys licensed elsewhere but residing and remotely lawyering from Delaware. That said, the opinion notes that it does not address whether lawyers who are not licensed in Delaware may practice remotely from Delaware, nor does it advise on lawyers in other states representing clients located in Delaware.
District of Columbia
D.C. was the first state to address the issue of UPL in the wake of the pandemic. On March 23, 2020, the D.C. Court of Appeals Committee on UPL held that its temporary practice and presence exception to UPL covers lawyers working remotely from D.C. during the pandemic. 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.
(Read more on this topic from my colleague Tyler Maulsby here.) As Tyler notes, “New York’s temporary [presence and] practice rule is similar to D.C.'s. In the absence of a similar advisory opinion from New York . . . . the D.C. Opinion provides helpful guidance for lawyers who may be dealing with a similar quandary." However, it is important to note that unlike some other jurisdictions, the D.C. opinion is based on the temporary nature of the lawyer's presence and therefore its application may be limited.
In response to a petition from a New Jersey lawyer to the Florida Bar Committee, the Florida Supreme Court analyzed the issue of UPL during the WFH era. The attorney asked the Committee whether it would be UPL for him to work from his Florida home solely on federal intellectual property matters for a New Jersey-based law firm. The Committee held a public hearing on the attorneys’ request, after which it filed with the Court a proposed advisory opinion on August 17, 2020 concluding that his remote work activities do not constitute the unlicensed practice of law in Florida because the attorney had no public professional presence in Florida, did not represent Florida clients, did not work on issues involving Florida courts or property, would not advise on Florida law, and was not soliciting Florida clients.
Notably, the Committee emphasized that, in light of the COVID-19 pandemic, it found the following written testimony of another attorney to be “particularly persuasive.”
[T]he future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work-life balance. It is not a practice to discourage.
(Emphasis added). On May 20, 2021, the Florida Supreme Court adopted the advisory opinion.
On December 21, 2020, the Attorney Registration and Disciplinary Commission (ARDC) of the Supreme Court of Illinois published an article titled “The Ethics of Working Remotely from Another Jurisdiction.” In that article, the ARDC highlights that “[t]he new remote practice culture heightens the potential of running afoul of UPL.” The article, by analyzing similar Illinois ethics opinions and highlighting the aforementioned jurisdictions’ rules and opinions on UPL, suggests that Illinois will likewise support remote practice subject to requirements similar in those jurisdictions.
(In an update, the article points out that it was submitted for publication before the December 16th ABA opinion and refers to it for further guidance.)
Maine has long permitted remote practice. In 2005 the Maine Board of Bar Overseers issued Opinion 189, which concluded:
Where the lawyer’s practice is located in another state and where the lawyer is working on office matters from afar, we would conclude that the lawyer is not engaged in the unauthorized practice of law. We would reach the same conclusion with respect to a lawyer who lived in Maine and worked out of his or her home for the benefit of a law firm and clients located in some other jurisdiction. In neither case has the lawyer established a professional office in Maine, established some other systematic and continuous presence in Maine, held himself or herself out to the public as admitted in Maine, or even provided legal services in Maine where the lawyer is working for the benefit of a non-Maine client on a matter focused in a jurisdiction other than Maine.
In 2010, in In re Application of Carlton, 708 F. Supp. 2d 524 (D. Md. 2010), the Maryland district court considered whether a Maryland-barred attorney employed by a D.C. law firm, who lived in and telecommuted to worked from Massachusetts, had engaged in UPL. The Court concluded the lawyer was not engaged in UPL because the attorney did not practice Massachusetts law, represent any clients based in Massachusetts or with claims in Massachusetts, or hold herself out as a Massachusetts lawyer. And while she used rented office space in Massachusetts for some time, she used that office only to practice law in D.C. and before the Maryland district court and the U.S. Court of Federal Claims.
Also, earlier this month the Maryland Court of Appeals dismissed a grievance that accused a D.C. lawyer of UPL where the lawyer was practicing from Maryland. Notably, the court found that the lawyer technically violated Maryland's version of RPC 5.5, but decided that no disciplinary action was warranted.
Minnesota Rules of Professional Conduct Rule 5.5(d) authorizes an attorney who is admitted in another U.S. jurisdiction, and not disbarred or suspended from practice in any jurisdiction, to provide legal services in Minnesota that exclusively involve federal law, tribal law, or the law of another jurisdiction in which the attorney is licensed to practice law, provided that the attorney advises his or her client that the attorney is not licensed to practice in Minnesota.
The New Hampshire Rules of Professional Conduct Rule 5.5(d)(3) allows an attorney admitted outside of New Hampshire and in good standing to provide legal services through an office or other systematic and continuous presence in New Hampshire that relates solely to the law of the jurisdiction in which the attorney is admitted
As my colleague detailed in an earlier post, on October 6, 2021, N.J. issued an ethics opinion on UPL. There, the Committee on the Unauthorized Practice of Law and Advisory Committee on Professional Ethics opined that non-N.J.-licensed lawyers may practice out-of-state law from New Jersey if they do not maintain a “continuous and systematic presence,” which requires “an outward manifestation of physical presence, as a lawyer, in New Jersey (emphasis added)” The opinion listed the following cautionary examples that constitute such manifestations:
- practicing from a law office located in N.J.,
- any advertisement or similar communication stating that the non-N.J.-licensed lawyer engages in a legal practice in N.J.,
- any advertisement or similar communication referring to a location in N.J. for the purpose of meeting with clients or potential clients,
- any advertisement or similar communication stating that mail or deliveries to the lawyer should be directed to a N.J. location,
- otherwise holding oneself out as available to practice law in N.J.
That said, the opinion concluded that:
[N]on-New Jersey licensed lawyers who are associated with an out-of-state law firm, or are in-house counsel for an out-of-state company, and who simply work remotely from their New Jersey homes but do not exhibit such outward physical manifestations of presence, are not considered to have a “continuous and systematic presence” for the practice of law in New Jersey. Such non-New Jersey licensed lawyers are not considered to be engaging in the unauthorized practice of New Jersey law.
In November 2021 the New York City Bar Association issued a proposal to amend New York's "temporary practice" rule to permit remote practice. Unlike other jurisdictions, New York has not adopted Model Rule 5.5 and regulates temporary practice and UPL through its court rules. The proposal would bring New York in line with ABA Opinion 495 and permit remote practice under similar circumstances. Recently, the New York State Bar Association (NYSBA) House of Delegates approved the proposal and recommended its adoption to the courts. The proposal is now before the Administrative Board of the Courts for consideration and, if approved, it will be added to the rules of the Court of Appeals.
North Carolina Rules of Professional Conduct Rule 5.5(d)(2) allows attorneys admitted in another U.S. jurisdiction, and not disbarred or suspended in any jurisdiction, to establish an office or other systematic presence in North Carolina for the practice of law, so long as the attorney is authorized to practice it.
On September 15, 2021, Ohio amended its RPC regarding UPL. Indeed, the rule is now entitled “Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law; Remote Practice of Law.” The amended rule, provides that non-Ohio-licensed lawyers may establish “an office or other systematic and continuous presence” in Ohio if the lawyers are providing services that are authorized by the jurisdiction in which the lawyer is licensed. However, like New Jersey (detailed below), the amendment states that that the lawyer may not:
- solicit business, accept clients for representation within Ohio or appear before Ohio tribunals except as otherwise authorized by rule or law;
- state, imply, or hold themselves out as an Ohio lawyer or as being admitted to practice law in Ohio; and
- violate the provisions of Ohio’s rules regarding fee sharing with a nonlawyer and advertising.
The amendment also dictates that a lawyer practicing remotely from Ohio must indicate their “jurisdictional limitations” (i.e., not admitted to practice law in Ohio) on publicly available firm materials.
On March 2, 2021, in an joint ethics opinion, the Pennsylvania Bar Association and the Philadelphia Bar Association concluded that:
Lawyers licensed in Pennsylvania may ethically engage in the remote practice of law for clients with Pennsylvania matters while being physically present in a jurisdiction in which they are not admitted unless a statute, rule, case law, or opinion of that jurisdiction prohibits the conduct. Although the lawyers may not hold themselves out as being licensed to practice in the local jurisdiction and may not advertise or otherwise hold themselves out as having an office in the local jurisdiction, or provide or offer to provide legal services in the local jurisdiction, the fact that they are physically located there does not bar them from working remotely for the same clients.
Utah Ethics Opinion 19-03 (2019) concluded that the Utah Rules of Professional Conduct did not prohibit an out-of-state attorney from representing clients from the state where the attorney is licensed, even if the out-of-state attorney does so from the attorney's residence in Utah. The opinion states: “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 . . . none.” The opinion also underscored leaning towards a reasonable and time-appropriate interpretation of the RPC:
While one could argue that living in Utah while practicing law for out-of-state clients does literally “establish a systematic and continuous presence in this jurisdiction for the practice of law,” and that it does not have to be “for the practice of law IN UTAH,” that reading finds no support in case law or commentary.
After undergoing the notice and comment period, on September 16, 2021, the Virginia State Bar’s Standing Committee on Legal Ethics sent for approval its proposed Legal Ethics Opinion 1896, concerning “Out-of-State Lawyers Working Remotely in Virginia.” The opinion:
[A]ddresses the remote work questions sparked by the COVID-19 pandemic and discusses opinions on the question from other states and the ABA while reinforcing the conclusion from LEO 1856 that a foreign lawyer may maintain a continuous and systematic presence in Virginia as long as the lawyer is engaged in the practice of law of their licensing jurisdiction and/or exclusively federal law that does not require Virginia licensure. While the foreign lawyer does not have to remain “invisible” within Virginia, they cannot hold out as authorized to practice law in Virginia and must appropriately disclose their status.
On January 29, 2021, Wisconsin Formal Ethics Opinion EF-21-02 addressed the “several ways a lawyer’s responsibilities are affected” because of the pandemic, including the pandemic’s implications on UPL. On the latter point, the opinion concluded, “based on the language” of its rule and “its purpose, and the other ethics opinions [looking to above-detailed Utah and Maine ones], we conclude that the Rule does not prohibit an out-of-state lawyer from representing clients from the state where the attorney is licensed even if the out-of-state lawyer does so from the lawyer’s private location in Wisconsin.” The opinion cautioned that, “in order to avoid engaging in [UPL], the out-of-state lawyer must not establish a public office in Wisconsin or solicit Wisconsin business unless otherwise authorized by law.”
Based on the above, it looks like the WFH culture is here to stay - at least in some form - and that states are slowly modifying their ethics rules and UPL regulations to keep up with the trends. That said, many jurisdictions still have not addressed the "butt-in-seat" problem, so lawyers should still tread carefully. As more states speak out on this issue, we'll be sure you keep you posted.
"The future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work-life balance. It is not a practice to discourage."