A common problem under Rule 5.5 arises when a lawyer works from a remote jurisdiction and establishes what is described under the rule as either a “systematic and continuous presence” or a “temporary” practice in that jurisdiction. Under either of these circumstances, the prohibitions in Rule 5.5 against the unauthorized practice of law kick in. For an in-depth analysis of Rule 5.5 see an article published by this section here.
Relying on these terms to determine what does and does not violate the rules leaves much room for error and guesswork. Moreover, a “systematic and continuous presence” (Rule 5.5(b)(1)) and practice on a “temporary basis” (Rule 5.5(c)) are typically considered mutually exclusive; lawyers who are practicing on a continuous basis from a remote jurisdiction generally cannot avail themselves of the exceptions to the prohibition under Rule 5.5(b)(1) that are enumerated in Rule 5.5(c).
Ethics Opinions on How to Avoid Violating Rule 5.5
The popular solution to this dilemma is set out in ABA Formal Opinion 495 (December 2020) and, more recently, in a lengthy Florida ethics opinion entitled “Out-of-State Attorney Working Remotely from Florida Home” (May, 2021). Basically, the workaround involves physically present lawyers avoiding establishing any professional presence in the jurisdiction. This means that lawyers may be physically present and carry on the practice of law from the remote jurisdiction as long as they do not make any references in letterhead, e-mail signature blocks, business cards, websites, office signage or directories, or in other public communications that would indicate or imply that the lawyer has any professional presence there. In short, from a professional standpoint, lawyers must make themselves invisible in the remote jurisdiction.
This workaround elevates form over substance to fit within the constraints of Rule 5.5 and its state counterparts. The rationale in focusing on the professional presence is that there is little risk to the residents of the remote jurisdiction—and therefore no reason to regulate the lawyer’s conduct—if the lawyer as a professional does not “exist” there.
This approach has been adopted in a number of other jurisdictions, including a joint opinion from the Pennsylvania and Philadelphia Bar Associations and an opinion from Delaware.
A New Ohio Rule Codifies a Solution
The State of Ohio has recently amended its version of Model Rule 5.5 to clarify just what does and does not constitute the unauthorized practice of law by a lawyer practicing from Ohio but not licensed there. Effective September 1, 2021, Ohio RPC 5.5 was amended to provide that lawyers not licensed in Ohio may actually establish “an office or other systematic and continuous presence” there if the lawyers are providing services that are authorized by the lawyers’ licensing jurisdiction and provided the lawyers do not: (1) solicit business, accept clients for representation within Ohio or appear before Ohio tribunals except as otherwise authorized by rule or law; (2) state, imply, or hold themselves out as an Ohio lawyer or as being admitted to practice law in Ohio; and (3) violate the provisions of Ohio’s rules regarding fee sharing with a nonlawyer (Rule 5.4) and advertising (Rules 7.1 and 7.5).
The amended rule further provides that any lawyer practicing from Ohio as their remote jurisdiction must indicate their “jurisdictional limitations” on any firm materials available for public view by affirmatively stating that the lawyer is not admitted to practice in Ohio.
In codifying these standards, Ohio has both maintained the traditional limitations on the scope of a lawyer’s services in a remote jurisdiction and avoided any misunderstanding by the public regarding the lawyer’s licensure and the lawyer’s authority to practice law there. In doing so, Ohio laudably recognizes the practical realities of a modern, multi-jurisdictional practice of law in the digital age, a practice in which a lawyer’s physical presence on one or the other side of a state’s boundaries is not a relevant consideration in the lawyer’s ability to competently represent clients in their “home” (licensed) jurisdiction.
The rule amendment also removes the uncertainty that comes with reliance on various ethics opinions, most of which are advisory only. By eschewing artifice and instead setting out explicit, real-world standards, Ohio has made it possible for lawyers practicing remotely in Ohio to be confident that they are practicing within the boundaries of the local ethics rules. This is the kind of certainty that lawyers are entitled to in every jurisdiction and the ABA and other states should consider it as a model for amending their own rules.
