Remote court hearings and remote depositions are commonplace today. In fact, some law firms are hiring lawyers with the expectation that they may never work at the firm’s physical office and never appear in courtrooms located in their jurisdictions.
Remote practice, however, does not always fit neatly within the legal profession’s ethical obligations. We have already written extensively about a lawyer’s ethical obligation to provide reasonable security for client confidential information when working remotely (here, here, and here).
But there are other ethical pitfalls lurking in remote work. One of them is the danger that a lawyer licensed to practice law in one jurisdiction might be engaged in the unauthorized practice of law when providing legal services remotely while physically located in another jurisdiction.
For example, may a lawyer licensed in New York ethically provide legal services from a home office across the river in New Jersey? May a lawyer licensed in California provide legal services from a vacation home in Montana, or from a beach home in Florida? May a lawyer licensed in Illinois defend a remote deposition while physically located outside that state? The legal profession’s embrace of remote working arrangements means that these scenarios are not infrequent, one-off situations but instead are a permanent feature of modern law practice.
The American Bar Association’s Model Rules of Professional Conduct, Rule 5.5 (Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law), provides in part:
- A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
- A lawyer who is not admitted to practice in this jurisdiction shall not:
- except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
- hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
“In ABA Formal Opinion 495, the ABA advised that working remotely from an unlicensed jurisdiction does not violate Rule 5.5 if lawyers do not take additional steps to hold themselves out as being licensed in that jurisdiction (e.g., via letterhead, business cards, websites other indicia of the lawyer’s presence).”
With respect to remote practice, the critical inquiries raised by Rule 5.5(b) are whether a lawyer practicing law remotely has “establish[ed] an office or other systematic and continuous presence” in the jurisdiction where he or she is physically located or is representing to the public that he or she is licensed to practice in that jurisdiction.
Then there’s Rule 5.5(c), which allows a lawyer to provide legal services across state lines “on a temporary basis” if the services are reasonably related to the lawyer’s practice in the jurisdiction in which the lawyer is admitted to practice. Unfortunately, it would be a stretch to describe many remote working arrangements as being “on a temporary basis.”
These gray ethical areas recently prompted the ABA and other state regulators to revise the rules to permit remote legal work, also known as “virtual law practice.” In ABA Formal Opinion 495, the ABA advised that working remotely from an unlicensed jurisdiction does not violate Rule 5.5 if lawyers do not take additional steps to hold themselves out as being licensed in that jurisdiction (e.g., via letterhead, business cards, websites other indicia of the lawyer’s presence).
The ABA followed up this opinion with another one specifically addressing virtual law practice: ABA Formal Opinion 498 (Virtual Practice), which set out guidelines for practicing law online and across jurisdictional boundaries.
Many state regulators have approved remote work across jurisdictional lines. In Maine, the Maine Professional Ethics Commission advised that “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.”
The Utah Ethics Advisory Committee concluded that state ethical obligations “do 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 his private location in Utah.”
In Virginia, the state supreme court has ruled that “a lawyer who is not licensed in Virginia may work from a location in Virginia on a continuous and systematic basis, as long as that practice is limited to exclusively federal law and/or the law of the lawyer’s licensing jurisdiction, regardless of the reason for being in Virginia.”
In Ohio, the Ohio Board of Professional Conduct issued Opinion 2022-13, which explains how out-of-state lawyers can ethically take depositions in Ohio without running afoul of ethical rules forbidding the unauthorized practice of law. Notably, the Ohio opinion underlines the fact that a lawyer conducting a deposition is considered to be engaged in the practice of law.
Very recently, Vermont, Florida and Washington have added commentary to their versions of Rule 5.5 that set out the ways in which lawyers may ethically provide legal services remotely and across state lines – without engaging in the unauthorized practice of law. In Massachusetts, a public comment period closed Nov. 3 on a proposal to revise that state’s version of Rule 5.5 to make clear that lawyers admitted in another jurisdiction but not admitted to practice in Massachusetts are not engaged in the unauthorized practice of law if they provide legal services while located in Massachusetts but do not (a) advertise or otherwise hold themselves out as having an office in Massachusetts and (b) do not provide, or hold themselves out as authorized to provide legal services in Massachusetts.
Several other states are weighing similar proposals. While it seems safe to say, on the basis of all this regulatory activity essentially blessing and encouraging remote work, that remote depositions across state lines would not ordinarily raise ethical problems, the safest course of action is for remote litigators to consult both the ethical rules in the jurisdiction in which they are licensed and the ethical rules in the forum jurisdiction. Both jurisdictions may very well have rules governing how, and by whom, that remote deposition can ethically be conducted.