More Bar Regulators Approve Remote Work Arrangements

For any number of reasons, lawyers are increasingly working across state lines. During the COVID-19 pandemic, health regulations prevented many lawyers from traveling to law offices. They remained home, working remotely, sometimes physically located in a state where they were not licensed to practice law.

Other lawyers are practicing law temporarily in jurisdictions where they are not licensed because they are voluntarily moving to places where they would like to retire or vacation. Technology has made these moves possible. Quality of life makes them desirable. And then there is the unfortunate case of California-licensed lawyers who have literally been driven out of the state due to wildfires and other natural disasters.

The internet has eliminated geography as a barrier to electronic communication. Calls can now seamlessly be forwarded from lawyer offices to cell phones across the country. Even litigation can, in many particulars, be conducted remotely. The court clerk’s office is often just another website or email address, and nearly all litigators have experienced remote depositions and remote hearings during the past two years.

All of these forces have accelerated recently, leading many courts and bar regulators across the country to lay down ethical ground rules in this area. Fortunately for the legal profession, the ethics opinions handed down to date have unanimously concluded that lawyers working outside the state that issued their law licenses are not engaged in the unauthorized practice of law.

In 2020, the American Bar Association put a qualified stamp of approval on remote law practice. In ABA Formal Opinion 495 (Dec. 16, 2020), the ABA Standing Committee on Ethics and Professional Responsibility concluded that lawyers could ethically practice law while physically located in a jurisdiction in which they are not licensed, provided that they follow the local jurisdiction’s ethical rules on unauthorized law practice and don’t hold themselves out as being licensed in that jurisdiction.

Professional communications containing local contact information — such as on websites, business cards, and advertising — would likely cross the line into the unauthorized practice of law, the committee said.

Bar regulators in New Jersey recently reached a similar conclusion. New Jersey is home to many bedroom communities for lawyers practicing in New York and Pennsylvania. On Oct. 6, 2021, the New Jersey Supreme Court’s Committee on the Unauthorized Practice of Law Advisory Committee on Professional Ethics said that lawyers not licensed in New Jersey could ethically practice law from their New Jersey homes — provided that they didn’t hold themselves out as being licensed in the state.

In Non-New Jersey Licensed Lawyers Associated With Out-of-State Law Firms or Serving as In-House Counsel to Out-of-State Companies Remotely Working from New Jersey Home (Oct. 6, 2021), the committee ruled that lawyers not licensed in New Jersey who are practicing law from their New Jersey residences for out-of-state law firms or out-of-state companies are not engaged in the unauthorized practice of New Jersey law. Looking beyond this factual scenario, the committee opined that the following factors might raise UPL red flags:

  • Practicing law from a law office located in New Jersey
  • Advertising or other communications referring to a law office located in New Jersey for the purpose of meeting clients or potential clients in New Jersey
  • Advertising or other communications stating that mail or other deliveries should be made to a New Jersey address
  • Any other conduct suggesting that the lawyer is available to practice law in New Jersey.

Not only did lawyers in California have to cope with stringent health regulations during the COVID-19 pandemic, but many of them were also literally driven from their communities by wildfires that now seem to plague the state annually. Bar regulators described a California lawyer’s ethical obligations in a far-reaching opinion that touched on a number of ethical trouble spots, including unauthorized practice of law.

The State Bar of California Standing Committee on Professional Responsibility and Conduct, in Formal Opinion Interim 20-0004 (Aug. 12, 2021), advised California lawyers who — for whatever reason — are managing their practices from outside California to consult the rules of the jurisdiction in which they are physically located. The committee didn’t conclusively rule on whether remote lawyering was in fact ethical, but it did cite with apparent approval ABA Opinion 495 and other states that have considered and approved the practice.

On May 20, 2021, the Florida Supreme Court approved a state ethics body’s opinion allowing lawyers not licensed in Florida to serve clients from their Florida homes. The opinion, Florida Bar Re: Advisory Opinion—Out-Of-State Attorney Working Remotely From Florida Home (May 20, 2021), involved an attorney who was working from his Florida home solely on federal intellectual property law matters and not Florida law. Also, the attorney had not taken any steps to create a public presence in Florida or to otherwise hold himself out as a Florida attorney.

The committee found persuasive evidence (1) establishing that many aspects of legal work no longer require physical presence, (2) predicting that technology will accelerate the legal profession’s advance toward greater remote work opportunities, and (3) asserting that no harm is done to Florida residents by Florida-located lawyers serving clients in jurisdictions outside the state.

Bottom line: Remote lawyering is ethical (and even desirable) so long as local rules don’t forbid the practice and the remote lawyer refrains from any conduct or communication that suggests he or she might be open to representing clients in the local jurisdiction.