Of course, through the pandemic, many lawyers faced exactly the same question as their offices were closed by local health authorities or they simply chose, for health and other reasons, to work from home.
The Feared "Butt-in-Seat" View
Over the last few years, some of us have worried about this— specifically, whether some narrow-minded bar regulator in a jurisdiction like State B might insist you’d be engaged in the unauthorized practice of law (UPL) in State B if you did this. Ethics nerds have (somewhat jokingly) called this the “butt-in-seat” view—if your butt’s in a seat in State B, then you’re practicing law in State B. Most of us don’t like the view, but we’ve worried that some regulators might.
Over the last year, as the ABA and a few jurisdictions have explicitly abandoned this view, many of us have started to think we may have worried too much. (Of course, that’s our job, and we do it for you.)
Indeed, as it was adopting a “liberal” view on this issue, the Utah State Bar noted in its Opinion 19-03, “We can find no case where an attorney has been disciplined for practicing law out of a private residence for out-of-state clients located in the state where the attorney is licensed.” And the bar wisely pointed to clear federal constitutional problems with any such view.
Cheer for a Mobile Profession
The most powerful voice, as expressed in this rising chorus, is the ABA’s Standing Committee on Ethics and Professional Responsibility in ABA Formal Opinion 495.
Issued mid-pandemic, the ABA Opinion stakes out firm ground: Unless State B has some specific law holding that remote work by lawyers in State B is UPL, lawyers may continue their practice authorized in State A remotely from State B.
There are caveats, but this and a few other recent opinions are welcome news for an increasingly mobile (and virtual) profession.
The ABA View
First, the ABA Opinion says there has to be no law in State B that this kind of remote work by a lawyer is UPL. If it were, ABA Model Rule 5.5(a) would make violating that law misconduct.
Second, the lawyer is prohibited under Model Rule 5.5(b)(1) from “establish[ing] an office or other systematic and continuous presence” in State B. That means the lawyer cannot hold out to the public an address in State B as an office or use a local address on letterhead, business cards or websites. The lawyer, of course, cannot hold out to the public the ability to practice the law of State B, and the opinion hints that the lawyer may not actually do so. Thus, “[t]he lawyer’s physical presence in the jurisdiction is incidental; it is not for the practice of law.”
The opinion even suggests that, to avoid confusion for those who might presume the lawyer is regularly at the lawyer’s State A office, the lawyer might include a notation when giving the State A address. For example, the lawyer might include the phrase “by appointment only” or “for mail delivery” with that address on business cards, email signatures or a website.
Holding Out
Third, under Model Rule 5.5(b)(2), the lawyer cannot “hold out to the public or otherwise represent” that the lawyer is admitted in State B.
Both the second and third requirements make clear that the lawyer must carefully assess all public indications of licensure and “where” they are practicing. That especially includes any implications arising from the lawyer’s stated office or location. Affirmatively stating where a lawyer is licensed can help.
The Emerging View?
One emerging view seems to be that the lawyer can, in fact, simply continue an existing State A practice while working remotely in State B—that anything the lawyer could have done in State A (except court work), the lawyer can do remotely in State B.
This is broadly consistent with ABA Model Rule 5.5(c), assuming it’s in place in State B, but that Model Rule is only about “temporary” practice.
This view almost seems to treat the lawyer’s presence in State B as a secret. Indeed, the ABA Opinion concludes by pointing out State B’s lack of a regulatory purpose in regulating the lawyer’s conduct “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.”
But the basis of any broad “continued practice” view in the ethics rules is a bit weak and perhaps a bit antiquated. ABA Model Rule 5.5, for all its benefits, relies on the premise that a lawyer has a practice in some physical location somewhere.
It’s now clear, though, that most lawyers are under no regulatory requirement for a physical office. So if the lawyer’s practice is virtual, what does the broadest temporary-practice authorization in Model Rule 5.5(c)(4) mean when it authorizes work that “arise[s] out of or [is] reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice”? That’s hard to know.
What's Less Than Clear
Helpful as it is, the ABA Opinion does not say whether our hypothetical lawyer could take on a new matter concerning State B law for a State B citizen. For litigators, the answers are more easily within reach, and State B’s pro hac vice rules may help. But other lawyers must thoroughly review State B’s Model Rule 5.5 to assess, for example, whether the lawyer only licensed in State A can temporarily practice in a way that directly affects State B clients or directly implicates State B law.
You Can Go Home Again
What about that old office in State A? Must the lawyer keep it open?
A few states do mandate that a lawyer maintain a real office in the jurisdiction, so do check your local rules. Most do not.
More importantly, most jurisdictions do not require a lawyer to have any office, anywhere. More and more lawyers (and firms) are going entirely virtual, with no physical office at all. Look carefully at the websites of some “virtual firms,” and you’ll see no physical address at all for lawyers, just an email address and a phone number. That may be perfectly fine for most jurisdictions.
Still, be careful: Many jurisdictions would imply that a lawyer is claiming a local office from the inclusion of a street address for the firm or the lawyer, without more. But a careful disclaimer, as discussed above (for example, “for mail delivery”), might be enough to avoid misleading anyone.
But the winds of change may be blowing—this time, in the direction of lawyer mobility.