New Ethics Guidance for Remote Legal Practice

• Pages: 8-8
• Date: 01 July 2022
• Author: Frances Codd Slusarz
• Subject Matter: Civil Law

awyers 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 juris-

diction’s ethical rules. Under this rule,

a lawyer cannot establish an oce,

hold oneself out as an attorney, or

have any other “systematic and con-

tinuous 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 law-

yer’s practice area.

The purpose of Rule 5.5, the com-

mittee 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 juris-

New Ethics Guidance for Remote

Legal Practice

diction.” The committee advised that

to comply with Rule 5.5 when work-

ing outside a licensed jurisdiction, an

attorney should

• only practice the law of a

jurisdiction in which the law-

yer is licensed. If the attorney

is licensed in New York and

working remotely from New

Jersey, for example, the law-

yer should only practice New

York law.

• refrain from opening an oce

in a state where the lawyer

is not licensed. The lawyer’s

mere working presence in

the local jurisdiction does not

establish a systematic or con-

tinuous presence, but telling

the public in the local juris-

diction that the attorney is

present, available, and prac-

ticing law does.

• avoid holding oneself out

as an attorney in the local

jurisdiction. Specif‌ically, do

not use a local jurisdiction

address on letterhead, busi-

ness cards, websites, adver-

tising, or social media if not

licensed there. A f‌irm website

should also specify the law-

yer’s jurisdictional limits.

While acknowledging that the for-

mal opinion is a straightforward clari-

f‌ication of Rule 5.5, ABA Litigation

Section leaders caution against rely-

ing 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 contin-

ues. “The formal opinion is one type of

guidance, but it does not necessarily

mean that you are in the clear if you

practice remotely.”

By Frances Codd Slusa rz, Litigation News Contributing Editor

It is also unclea r exactly how the

opinion will be inte rpreted after the

pandemic is over, Sec tion leaders say.

“Under COVID , state bars across the

country are being solicitous, kind, and

tolerant of lawyer s and their work

situations,” expl ains John M. Barkett,

Miami, FL, co chair of the Section’s

Ethics & Profession alism Committee.

“Once COVID is over, that may no

longer be the c ase. The bigger issue

here is what happ ens 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 pur-

poses, but soon they will also decide

whether to permit remote work,

ensure that their lawyers report when

they plan to work from a dierent

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.

Digital versio ns of all Ethics stories,

including links to resources and authori-

ties, are availa ble at http://bit.ly/

LN-ethics .

8 | 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