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 released Formal Opinion 495 on Lawyers Working Remotely on Wednesday, which 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.
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.
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.”
ABA ethics opinions are persuasive authority, but not binding on any state authority. Even with the ABA taking action, Florida and other states that take a tougher line on the issue may be hard to convince. For instance, a comment addressing Florida’s unauthorized practice rule specifically bans the practice of another state’s law while sitting in Florida. Only a handful of states, including Maine, Utah, and Arizona expressly allow lawyers to practice in a state where they are not barred.