Lawyers wanting to work remotely on a permanent basis post-COVID should take a closer look at the ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 495 before untethering completely from a traditional workspace. The opinion clarifies that the ABA Model Rules of Professional Conduct still apply to lawyers working from states where they are not licensed. Lawyers remain subject to bar rules concerning the unauthorized practice of law and multijurisdictional practice of law in both the jurisdictions where they are licensed and the jurisdictions in which they work. However, attorneys may work remotely if they do not actively represent themselves as licensed in jurisdictions where they are not.
The opinion provides guidance on the application of ABA Model Rule of Professional Conduct 5.5, which addresses the unauthorized practice of law and multijurisdictional practice of law. Rule 5.5 prohibits lawyers from practicing law in a jurisdiction where doing so would violate the local jurisdiction’s ethical rules. Under this rule, a lawyer cannot establish an office, hold oneself out as an attorney, or have any other “systematic and continuous presence” in any jurisdiction where the lawyer is not licensed. There are exceptions for in-house counsel and attorneys providing temporary legal services in a local jurisdiction if the practice does not undermine the public’s interest in competent legal practice. For example, such a practice would be permissible if the lawyer engages competent local counsel and sticks to matters related to the lawyer’s practice area.
The purpose of Rule 5.5, the committee observed, is to protect the public from unlicensed and unqualified practitioners of law, which is achieved if a remotely-working attorney is “invisible as a lawyer to the local jurisdiction.” The committee advised that to comply with Rule 5.5 when working outside a licensed jurisdiction, an attorney should:
While acknowledging that the formal opinion is a straightforward clarification of Rule 5.5, ABA Litigation Section leaders caution against relying too heavily on it. “It is important to remember that Rule 5.5 is a Model Rule,” cautions Laura K. Lin, San Francisco, CA, cochair of the Litigation Section’s Ethics & Professionalism Committee. “Lawyers still must check the rules of their licensing jurisdiction and the local jurisdiction,” Lin continues. “The formal opinion is one type of guidance, but it does not necessarily mean that you are in the clear if you practice remotely.”
It is also unclear exactly how the opinion will be interpreted after the pandemic is over, Section leaders say. “Under COVID, state bars across the country are being solicitous, kind, and tolerant of lawyers and their work situations,” explains John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “Once COVID is over, that may no longer be the case. The bigger issue here is what happens post COVID,” Barkett asserts.
Section leaders agree that how and where lawyers practice has been changed forever by the pandemic, but the extent of the change remains to be seen. “Remote practice is still ‘temporary’ even though the current ‘temporary’ has gone on longer than any of us envisioned or hoped,” notes Lin. “The opinion does not necessarily mark the start of a trend toward long-term, regular remote practice in local jurisdictions but, in retrospect, it may prove to be,” she states.
According to Lin, firms already must track the states in which their lawyers perform work for tax purposes, but soon they will also decide whether to permit remote work, ensure that their lawyers report when they plan to work from a different jurisdiction, and track changes to bar rules concerning lawyers who are not barred locally.
Barkett is convinced that these decisions will lead to longer-term policy changes. “Telecommuting is not going away,” he predicts.
