Court Opens Door to Out-of-State Virtual Law Offices

• Pages: 6-6
• Date: 01 July 2022
• Author: Benjamin E. Long
• Subject Matter: Civil Law

ne state supreme court

allowed an attorney to

open a virtual law oce

even though that attor-

ney was not licensed to

practice law in that state. The court

cited how the COVID-19 pandemic and

wider adaptation of technology have

advanced how attorneys practice law.

ABA Litigation Section leaders believe

this opinion highlights a trend that

the physical location of an attorney

is becoming less relevant, and it may

even signal changes in how attorneys

are licensed in the future.

In an order styled The Florida Bar

Re: Advisory Opinion—Out-of-State

Attorney Working Remotely from

Florida Home, the Supreme Court

of Florida considered a proposed

advisory opinion from the Florida

Bar’s Standing Committee on the

Unlicensed Practice of Law. The com-

mittee had analyzed whether an attor-

ney not licensed in Florida could set

up a permanent virtual oce in the

state working remotely for his law f‌irm

located in New Jersey.

The attorney petitioned for a for-

mal advisory opinion for permission

to work remotely on federal intellec-

tual property issues for clients associ-

ated only with his New Jersey oce.

Rule 4–5.5(b)(1) of the Florida Rules

of Professional Conduct states that a

lawyer who is not admitted to practice

law in Florida may not have an oce

or regular presence in Florida for the

purpose of practicing law. The attor-

ney was concerned that he would vio-

late that rule if he set up a permanent

remote oce in the state.

At the time of the petition, the

attorney advised that he was licensed

to practice law in New York, in New

Jersey, and with the U.S. Patent and

Trademark Oce, but not in Florida.

His professional oce was identif‌ied

to the public as being located only at

his New Jersey law f‌irm. Letterheads,

websites, and business cards only

Court Opens Door to Out-of-State

Virtual Law Oces

identif‌ied his New Jersey location. His

professional email address used the

f‌irm’s domain name.

According to the petition, the attor-

ney planned to work from his Florida

home using a computer securely con-

nected 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 attorn ey. He would not work

on any issues that involve Fl orida courts

or Florida prope rty and would not pro-

vide advice on Flor ida law. The peti-

tioner testif‌ie d to the committee that he

would be using tech nology that “essen-

tially places me vi rtually in New Jersey

. . .” and that through th is technology

there would be alm ost no dierence

from his “physical ly sitting in a chair in

Eatontown, New Jersey.” The petitioner

believed that “every thing is actually on

a computer [and server] in New Je rsey

. . . [and he would be] . . . simply sup-

plying that compu ter with mouse clicks

and taps on [his] keyboard.”

The committee a greed with the peti-

tioner. The committe e f‌irst stated that

“the single m ost important concern

in the court ’s def‌ining and regulat-

ing the practice of l aw is the protec-

tion of the public fro m incompetent,

unethical, or irresponsible represen-

tation.” Nevertheless, the committee

recognized that the p etitioner would

not be practicin g law in Florida or

providing any kind of le gal services

for the resident s of Florida. He would

not be holding hi mself or his law f‌irm

out to the public in any m anner as

even having a presence i n Florida.

“[T]he re is no interest that warrants

regulating Petitio ner’s practice for his

out-of-state clients un der the circum-

stances descr ibed in his request sim-

ply because h e has a private home in

Florida,” state d the committee.

The committee further recognized

that the COVID-19 p andemic has cast a

new light on this issu e, noting that the

future of the prac tice of law will involve

more attorneys worki ng remotely

from second homes and primary resi-

dences, and th at working remotely

“can contribute to an im proved work/

life balance [and is] not a practice to

discourage.” Th e Supreme Court of

Florida approved a nd adopted the

proposed advisory opinion from the

committee without modif‌ication or

elaboration.

Litigation Secti on leaders believe

this opinion set s up a signif‌icant

precedent. “ The COVID pandemic—

combined with tech nology—has dem-

onstrated that law yers can successfully

work remotely,” states Joh n M. Barkett,

Miami, FL, co chair of the Section’s

Ethics & Profession alism Committee.

“And this opinion now est ablishes that

doing so does not r epresent the unau-

thorized practice o f law if that work is

performed i n a jurisdiction in which the

lawyer is not licen sed,” he adds.

“This is not a sur prising or remark-

able opinion in a nd of itself,” comments

William E. Weinb erger, Los Angeles,

CA, cochai r of the Section’s Corporate

Counsel Comm ittee. “However, this

case largely se ts up the guidelines for

attorneys and state b ars to follow in

the future as they an alyze whether

an out-of-state attorney is p ractic-

ing ethically,” he obse rves. “I think the

trend of out-of-state attorn eys work-

ing solely for out-of-st ate clients will be

one that continue s to increase,” opines

Weinberger.

Another Sec tion leader thinks this

opinion may aec t how states license

attorneys in general. “The physi-

cal location of a n attorney may soon

become irreleva nt in many ways,” pre-

dicts Paula M . Bagger, Hingham, MA ,

cochair of the Sec tion’s Commercial &

Business Litig ation Committee. “I think

we will start to see so me states mak-

ing it easier for at torneys to become

licensed throu gh greater use of reci-

procity and uni form bar exams,” she

concludes.

By Benjamin E. Lo ng, Litigation News Team Editor

6 | LITIGATION SECTIO N

Published in Litigation News Volume 47, Number 4, Summer 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

ETHICS STRU GGLES IN THE LEGAL WOR LD