During the quarantine, many lawyers have been working from home to service their clients. Others have taken residence in other locales to “ride it out” while the COVID numbers are high. Living in a different jurisdiction than the one you practice in is a fairly common occurrence in commuter locations such as New York City (where lawyers may work in the city but live in New Jersey or Connecticut), Washington, D.C. (where lawyers may live in Maryland or Virginia), or geographical border towns such as Kansas City. 

Some have raised questions about whether lawyers face any risk from “unauthorized practice of law” rules if they are working in a jurisdiction that is different from their office location (or in which they are not admitted). Most experts have agreed that, as long as a lawyer was affiliated with an office in a jurisdiction in which the lawyer was admitted, and in light of the other restrictions of the pandemic, this remote working likely did not pose an ethical risk. Now there is good news: the ABA Standing Committee on Ethics and Professional Responsibility has weighed in and provided a favorable opinion.

Formal Opinion 495 clarifies the risks for those lawyers working remotely in jurisdictions to which they are not admitted. The ABA opinion recommends that lawyers can continue to work from home when they take steps to ensure that they are not engaged in the unauthorized practice of law, including: (1) confirming that the local jurisdiction has not determined that the conduct constitutes the unlicensed or unauthorized practice of law; (2) ensuring that lawyers do not hold themselves out as being licensed to practice in the local jurisdiction; and (3) avoiding advertising or otherwise suggesting that lawyers have an office in the local jurisdiction.

Here are some tips for managing your remote practice.

If Not Admitted, Don’t Hold Yourself Out as Licensed in the Local Jurisdiction

A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. Formal Opinion 495 discusses the application of the model rules regarding the unauthorized practice of law. Model Rule 5.5(b)(1) prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence” in a jurisdiction where the lawyer is not licensed to practice law. In addition, Model Rule 5.5(b)(2) prohibits a lawyer from “hold[ing] out to the public or otherwise represent[ing] that the lawyer is admitted to practice law in [the] jurisdiction” in which the lawyer is not admitted to practice. 

Typically, to avoid the unauthorized practice of law, lawyers are instructed not to “establish” an office or systematic and continuous presence in a jurisdiction where the lawyer is not licensed to practice. However, in the context of people who are working from home during the pandemic, a lawyer generally does not have a “systematic” presence in a jurisdiction (that could require seeking admission to the bar) merely by their physical presence in that jurisdiction if their practice is focused elsewhere. 

The main risk for lawyers is if they are perceived as misleading the public. Thus, a lawyer admitted in New York can continue using websites, letterhead, business cards, and advertising with that lawyer’s office address in New York. As explained in Formal Opinion 495, if that lawyer uses her home address in New Jersey on the letterhead (when the lawyer is not admitted in New Jersey), it could suggest the establishment of an “office” in that location or suggest to the public that the practitioner is a New Jersey lawyer. Indeed, “a lawyer who includes a local jurisdiction address on websites, letterhead, business cards, or advertising may be said to have established an office or a systematic and continuous presence in the local jurisdiction for the practice of law.”

Formal Opinion 495 also provides suggestions for lawyers who are working remotely and need to receive mail or information at their home address (even if not admitted there). To avoid misleading people who may presume that the lawyer’s physical presence implies that she is licensed to practice in the local jurisdiction, the lawyer might include a notation in each publication of the home address that it is only “for mail delivery.” Lawyers could also consider including disclaimers or notations specifying those jurisdictions in which the lawyer is licensed. For most lawyers, this issue can be clarified by simply noting their affiliation with their law firm and the location of their office from which they typically would work.

Know the Rules of the Local Jurisdiction

Formal Opinion 495 cautions that terms and conditions may apply to its conclusion. Indeed, “this committee will not opine whether working remotely by practicing the law of one’s licensing jurisdiction in a particular jurisdiction where one is not licensed constitutes the unauthorized practice of law under the law of that jurisdiction.” Accordingly, lawyers may benefit from confirming whether there are any local opinions or rules that govern whether remote work in that jurisdiction constitutes the unauthorized or unlicensed practice of law. 

During the pandemic many jurisdictions have provided guidance regarding remote working and unauthorized practice of law. Certain jurisdictions have made it easier for out-of-state lawyers to practice in a jurisdiction where they are licensed. For instance, the District of Columbia and Florida have clarified and relaxed their rules. (Hyperlink: DC Opinion 24-20 (2020) and Florida Opinion No. 2019-4 (Aug. 17, 2020).

Remember Other Risks While Working From Home

Although the ABA opinion clarified the risk of unauthorized practice of law and confirmed that for most lawyers, this is a low-level risk, there are still other risks inherent in remote working that are worth attention.

A primary risk in working from home relates to Rule 1.6, which governs confidentiality. Lawyers can take care when working from home to be mindful of their surroundings when having confidential discussions. For instance, lawyers may have conversations in public spaces (i.e., front porches or backyards) and private spaces (i.e., kitchen, bedroom, etc.) where conversations may be easily overheard by neighbors or co-tenants. Many lawyers are also adopting practices at home for proper storage and disposal of confidential information.

Hopefully, the end of working from home is within sight. But for those lawyers who are continuing to practice another state’s laws while working from home, Formal Opinion 495 can provide some help.