In the wake of COVID-19, the ABA Standing Committee on Ethics and Professional Responsibility has issued complementary ethics opinions addressing the remote practice of law; Formal Opinion 495 (December 2020) and Formal Opinion 498 (March 2021) raise important ethical considerations to keep in mind when working away from the office.
Formal Opinion 495 addresses the reality that lawyers are increasingly working remotely while being physically present in jurisdictions in which they are not admitted. ABA Model Rule 5.5 generally prohibits lawyers from practicing law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist[ing] another in doing so” unless authorized by the rules or laws of that state. Without opining on specific state laws and rules, the Opinion allows that lawyers may practice pursuant to the jurisdictions in which they are licensed even from a physical location where the lawyer is not licensed, under specific parameters.
Notably, lawyers cannot establish an office, hold themselves out as being able to practice, or advertise in jurisdictions in which they are not admitted. The opinion notes that under Model Rule 5.5(c), lawyers may, under certain circumstances, provide legal services on a “temporary basis” in jurisdictions in which they are not admitted. Several state bar ethics opinions, including Maine, Utah, Pennsylvania/Philadelphia, Washington D.C., and Florida, address these issues and generally follow the committee’s conclusion that simply being physically present in a different jurisdiction does not constitute the unauthorized practice of law.
Opinion 495 raises several significant issues to keep in mind for those practicing law outside of their home jurisdiction. For example, each jurisdiction determines for itself what constitutes the “unauthorized practice of law.” So the first thing a lawyer should do before practicing in a state in which they are not licensed is to check the rules in that jurisdiction. To avoid non-compliance, larger firms need to keep abreast of the laws and rules in every state where firm employees may be residing and working. And if practitioners are practicing in other jurisdictions for any extended period, they should consider becoming admitted in those jurisdictions. In several jurisdictions, this can simply be done by motion with paying a fee.
Additionally, the opinion states that Model Rule 5.5(b) prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence in [the] jurisdiction [in which the lawyer is not licensed] for the practice of law,” or holding out to the public that the lawyer is admitted to practice in those jurisdictions. Typically, working remotely will not constitute “establish[ing]” an office or other systematic and continuous presence because the lawyer’s physical presence in the local jurisdiction is incidental and not for the practice of law. However, the committee points out that a lawyer who includes an address from a jurisdiction where they are not licensed on websites, letterhead, business cards, or in advertising may be said to have established such an office and likely violated the rule. Therefore, to the extent lawyers are working out of a temporary office in a jurisdiction where they are not licensed, they must be careful not to hold themselves out as being able to practice in that jurisdiction.
In Formal Opinion 498, the committee provides additional guidance on a virtual practice. The opinion focuses on ABA Model Rules of Professional Conduct that are particularly affected by virtual practice, including those of competence, diligence, communication, confidentiality, and supervision. Underlying the opinion is the understanding that lawyers should remain competent regarding relevant technology. It contains examples of special precautions that may be necessary for remote work, including using secure internet access, creating unique complex passwords and changing them periodically, and implementing firewalls.
Opinion 498 includes a list of potential problems with remote work and supervision of associates and staff. Because adequate supervision is more difficult via telephone or videoconference, those responsible for supervising should be doubly sure that the firm has updated and thorough policies and procedure in place and that everyone at the firm has been trained on and implements those policies.
Client confidentiality is also of increased importance and should be a part of any employee handbook. When working from home, lawyers and staff may share computers with others in the household, participate in calls with clients within earshot of others, or leave client files or documents in plain view of household trash. They may work in unsecure locations—such as the local coffee shop—where lawyers can be easily overheard or the internet is not secure. Anyone handling confidential information must take care to protect it—no matter where they are working.
Formal Opinions 495 and 498 provide useful guidance to practitioners no matter where they are located. Lawyers should remain vigilant about ensuring that the same standards of practice that exist in the office are in place for those working remotely.
