At the time of the petition, the attorney advised that he was licensed to practice law in New York, New Jersey, and with the U.S. Patent and Trademark Office, but not in Florida. His professional office was identified to the public as being located only at his New Jersey law firm. Letterheads, websites, and business cards only identified his New Jersey location. His professional email address used the firm’s domain name.
According to the petition, the attorney planned to work from his Florida home using a computer securely connected to his firm’s network in New Jersey. He would not have any public presence in Florida as an attorney and would not represent to anyone that he is a Florida attorney. He would not work on any issues that involve Florida courts or Florida property and would not provide advice on Florida law. The petitioner testified to the committee that he would be using technology that “essentially places me virtually in New Jersey . . .” and that through this technology there would be almost no difference from his “physically sitting in a chair in Eatontown, New Jersey.” The petitioner believed that “everything is actually on a computer [and server] in New Jersey . . . [and he would be] . . . simply supplying that computer with mouse clicks and taps on [his] keyboard.”
Public Protection Is Paramount
The committee agreed with the petitioner. The committee first stated that “the single most important concern in the court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.” Nevertheless, the committee recognized that the petitioner would not be practicing law in Florida or providing any kind of legal services for the residents of Florida. He would not be holding himself or his law firm out to the public in any manner as even having a presence in Florida. “[T]here is no interest that warrants regulating Petitioner’s practice for his out-of-state clients under the circumstances described in his request simply because he has a private home in Florida,” stated the committee.
The committee further recognized that the COVID-19 pandemic has cast a new light on this issue, noting that the future of the practice of law will involve more attorneys working remotely from second homes and primary residences, and that working remotely “can contribute to an improved work/life balance [and is] not a practice to discourage.” The Supreme Court of Florida approved and adopted the proposed advisory opinion from the committee without modification or elaboration.
A Sign of Changes to Come
Litigation Section leaders believe this opinion sets up a significant precedent. “The COVID pandemic—combined with technology—has demonstrated that lawyers can successfully work remotely,” states John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “And this opinion now establishes that doing so does not represent the unauthorized practice of law if that work is performed in a jurisdiction in which the lawyer is not licensed,” he adds.
“This is not a surprising or remarkable opinion in and of itself,” comments William E. Weinberger, Los Angeles, CA, cochair of the Section’s Corporate Counsel Committee. “However, this case largely sets up the guidelines for attorneys and state bars to follow in the future as they analyze whether an out-of-state attorney is practicing ethically,” he observes. “I think the trend of out-of-state attorneys working solely for out-of-state clients will be one that continues to increase,” opines Weinberger.
Other Section leaders think this opinion may affect how states license attorneys in general. “The physical location of an attorney may soon become irrelevant in many ways,” predicts Paula M. Bagger, Hingham, MA, cochair of the Section’s Commercial & Business Litigation Committee. “I think we will start to see some states making it easier for attorneys to become licensed through greater use of reciprocity and uniform bar exams.”