Formal Opinion 495: Maintaining Compliance with Ethical Rules from Your Couch

Robert Gottfried
For better or worse, the profession has quickly adopted and embraced telecommuting and virtual work environments.

For better or worse, the profession has quickly adopted and embraced telecommuting and virtual work environments.

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The COVID-19 pandemic has, without question, changed the way attorneys work. Notably, a profession once notoriously “office-bound” is now littered with attorneys practicing law from places they may not have a year ago. For better or worse, the profession has quickly adopted and embraced telecommuting and virtual work environments. However, this new world of remote practice brings many questions, notably how remote work is contemplated by the Model Rules of Professional Conduct.

During the COVID-19 pandemic, technology has allowed lawyers to practice virtually in a jurisdiction where they are licensed, even if they are not physically located in that jurisdiction. For some lawyers, their primary residence may be in one jurisdiction, while they are licensed in another (e.g., New York–licensed attorneys who reside in Connecticut or New Jersey). For others, the flexibility provided by remote work arrangements allows them to temporarily practice the law of their licensed jurisdiction from a jurisdiction they are not licensed in (e.g., an Illinois-licensed attorney on a brief vacation in Wisconsin).

Model Rule 5.5(a)

Currently, Model Rule 5.5(a) prohibits attorneys from engaging in the unauthorized practice of law, explicitly barring attorneys from practicing law in a jurisdiction “in violation of the regulation of the legal professional in that jurisdiction.” Essentially, 5.5(a) prohibits attorneys from practicing law in a jurisdiction where they are not licensed. Recently, the ABA Standing Committee on Ethics and Professional Responsibility published Formal Ethics Opinion 495, interpreting Model Rule 5.5(a) for this new remote work environment.

Formal Opinion 495

In Formal Opinion 495, the Ethics Committee opined that attorneys may, barring any specific state regulation, practice the law of their “licensing jurisdiction” from a physical location where they are not licensed (their local jurisdiction). This means that the New York–licensed attorney who resides in New Jersey is not engaging in the unauthorized practice of law by practicing New York law from her home in New Jersey. The Illinois-licensed attorney is not engaging in the unauthorized practice of law by practicing Illinois law while on vacation in Wisconsin.

The Model Rules and Remote Work

As always, attorneys should consult the relevant rules, regulations, and statutes governing the professional responsibility of lawyers in their own states. However, to make sure that you are operating within the bounds of the Model Rules of Professional Conduct when working remotely.

Don’t Hold Yourself Out as Licensed in Your Local Jurisdiction

If you are not licensed in your local jurisdiction, do not hold yourself out as or otherwise imply that you are licensed in that jurisdiction. For instance, if the Illinois-licensed attorney above is only licensed in Illinois, he should not tell others he is licensed in or practicing in Wisconsin. Make sure that your firm’s website clearly lists the jurisdictions in which you are licensed. Also, do not offer legal services to individuals or entities within your local jurisdiction if you are not licensed to practice law in that jurisdiction.

Don’t Provide a Local Address to Your Clients

For purposes of Rule 5.5(a), you must still behave as if practicing in your licensed jurisdiction. Do not give clients (current or prospective), opposing counsel, the court, or anyone else an address in your local jurisdiction where they can send mail to or otherwise reach you. Do not put an address in your local jurisdiction on any firm letterhead, business cards, email signatures, or other places where your contact information is available. For example, the New York–licensed attorney must continue to give others the contact information for her New York office, not her residence in New Jersey.

Do Keep Up to Date on the Technology You Use to Work Remotely

Every attorney working remotely should pay attention to the responsibilities outlined in comment [8] to Model Rule of Professional Conduct Rule 1.1, requiring attorneys to maintain the appropriate knowledge and skill to be competent in relevant technologies, including the benefits and risks associated with each. Ensuring that each attorney maintains this level of competence allows us to continue the flexibility provided by remote work while protecting members of the public who seek our services.

Do Continue to Represent Your Clients Diligently

Remote work can often “feel” more relaxed and casual than putting on a suit and going into your office every day. However, ethical duties to your client remain despite this casualness. Rule 1.3 requires you to diligently represent your client “despite opposition, obstruction, or personal inconvenience to the lawyer,” and Rule 1.4 requires you to continue to “reasonably consult with” your client and to keep them “reasonably informed about the status of [their] matter,” even if you’re still in your pajamas.

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Robert Gottfried

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Robert Gottfried is staff counsel at the American Bar Association Center for Professional Responsibility in Chicago, Illinois.