Ethics Watch: Change Is in the Air
| Publication year | 2020 |
| Pages | 15 |
ETHICS WATCH
Change is in the Air
By Nathan M. Crystal
We are all witnessing the dramatic changes COVID-19 is bringing to the legal profession. From reduction in staff, to virtual work, to increased malpractice risks, to new substantive and procedural issues, the virus is forcing fundamental reordering of the profession that will likely last for decades.
These virus-related changes are producing a number of ethical issues, such as the duty of competency when lawyers use virtual technologies to present cases in court or when they draft contract provisions providing for excuse from contractual performance, the duty of confidentiality when lawyers increasingly work in settings less secure than traditional law offices, and the duty of supervision when lawyers are frequently working from home.
The new professional circumstances resulting from the virus (coupled with other professional developments that have been occurring over the last several decades) are also producing changes in the rules of professional conduct. In this article I focus on two recent developments regarding ethics rules: ethics opinions in Florida and Utah limiting the “butt-in-the-seat” rule and the Arizona Supreme Court’s adoption of rule changes, including repeal of Rule 5.4, to allow nonlawyer ownership of law firms.
The “butt-in-the-seat” rule
Aficionados of legal ethics will be familiar with the “butt-in-the seat” rule. The rule, which is an aspect of the doctrine of the unauthorized practice of law, provides that a lawyer engages in the unauthorized practice of law if the lawyer, when a resident (or perhaps even physically present) in a jurisdiction where the lawyer is not admitted to practice (i.e. where the lawyer has her butt), provides legal advice from that jurisdiction. The rule applies even if the legal advice involves the law of a jurisdiction where the lawyer is admitted to practice and even if the advice does not involve a resident of the state in which the lawyer has her “butt.” Outside of ethics circles, this rule seems anachronistic considering modern technology.
By contrast, for decades the legal profession has been becoming increasingly mobile. Indeed, this change was a major factor in the American Bar Association’s adoption in 2002 of revisions to Model Rule 5.5, allowing for some degree of multijurisdictional practice. South Carolina has adopted these changes but with some modification. However, Rule 5.5 does not address all issues of multijuris-dictional practice, including the butt-in-the-seat rule, which can still pose ethical risks to lawyers engaged in multistate practice.[1]
One fact pattern raising the butt-in-the-seat...
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