During the pandemic, remote work became the norm, with some lawyers even making such choices permanent by moving their homes to locations where they are not admitted to practice law. This shift has raised a number of ethical issues for courts and bars.

The Georgia Bar addressed this question involving a hypothetical lawyer working in Georgia in Formal Advisory Opinion No. 22-1 (“FAO”): “[u]nder Georgia Rule of Professional Conduct 5.5, may a Domestic Lawyer or a Foreign Lawyer provide legal services by remote means from Georgia while residing in Georgia, when the services have no relationship with Georgia other than the lawyer’s physical location?”

This is a helpful opinion to review to see how one state bar has addressed this issue. In sum, under the Georgia Rules of Professional Conduct, Georgia-based (but not Georgia-licensed) lawyers can provide legal services under the following conditions: “(a) the lawyer does not hold out or otherwise represent that they are licensed in Georgia; (b) the lawyer takes reasonable steps to ensure that the lawyer’s Georgia location is not generally known; and (c) the lawyer takes reasonable steps to correct any misunderstanding about the lawyer’s licensure.”

What Do the Rules Say?

As the advisory opinion notes, Georgia Rule of Professional Conduct 5.5 “permits Domestic Lawyers to provide in Georgia certain services on an ongoing basis for the lawyer’s employer or its organizational affiliates and services that the lawyer is authorized to provide by federal or Georgia law. Foreign Lawyers may provide in Georgia some ongoing services for the lawyer’s employer or its organizational affiliates. Georgia Rule 5.5 also permits both Domestic and Foreign Lawyers to provide some legal services in Georgia if the services are performed on a temporary basis.”

Thus, it is helpful to review how the Bar defines a “Domestic Lawyer” and a “Foreign Lawyer.” Under Georgia Rule 1.0(f), a “Domestic Lawyer” is a person who is admitted to practice law somewhere in the United States, but not in Georgia. Georgia Rule 1.0(h) provides that a “Foreign Lawyer” is a person who is authorized to practice law in any foreign nation, but not in Georgia.

Interestingly, the Association of Professional Responsibility Lawyers has asked ABA to consider updating Model Rule of Professional Conduct 5.5 “to better reflect the way lawyers practice in the 21st century.” The American Bar Association Center for Professional Responsibility Working Group on Model Rule of Professional Conduct 5.5 reportedly is considering whether to propose updates to the rule to represent reflect the practice in a post-pandemic environment.

Is a Formal Advisory Opinion Binding in Georgia?

Formal Advisory Opinions in Georgia are in a unique category. Georgia Rule of Professional Conduct 4-403(d) explains that “[u]nless the Supreme Court of Georgia grants review as provided hereinafter, the opinion shall be binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court of Georgia, which shall treat the opinion as persuasive authority only.” Here, FAO No. 22-1 has been set for publishing by the Georgia Supreme Court.

What Does It Mean to Practice Law “In Georgia”?

FAO 22-1 provides some guidance about how domestic or foreign lawyers may hold themselves out when working in Georgia. Although a lawyer located in Georgia may technically be providing legal services “in Georgia,” that is not the same as providing Georgia-related legal services.

FAO 22-1 notes that the legal issue of whether a lawyer’s conduct constitutes unauthorized practice goes beyond the scope of the opinion. But Rule 5.5 sets forth the limited circumstances in which a domestic or foreign lawyer can provide legal services “in Georgia.” Rule 5.5 does not allow domestic or Foreign Lawyers to “hold out to the public or otherwise represent that the [Domestic Lawyer or Foreign Lawyer] is admitted to practice law in this jurisdiction.”

The opinion provides, though, that lawyers who have no connection to Georgia other than their physical presence there are typically not providing legal services “in Georgia.” Thus, such lawyers may not be obligated to get admitted to the Georgia bar, although it is important that they not hold themselves out in a way that suggests they are admitted in Georgia.

Remote Lawyers Should Not Advertise Their Presence in Georgia

Rule 5.5 also does not allow domestic or foreign lawyers to “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” In order to not mislead or inadvertently hold oneself out as licensed in Georgia, FAO No. 22-1 suggests that a lawyer “must practice only remotely and take all other reasonable steps to ensure that the lawyer’s provision of legal services from Georgia is not generally known to the public.” Such reasonable steps may include not including a Georgia-based address in advertisements, letterheads, business cards, or other marketing tools.

As the opinion notes, “[t]he purpose of these prohibitions is to prevent the public from being misled about the Domestic or Foreign Lawyer’s licensure.” While an affirmative misrepresentation may be an obvious violation of the rules, a less obvious but still potential breach can occur where a lawyer’s continuous presence in the state will lead the public to think the lawyer is licensed to practice in Georgia.

Remote Lawyers Must Take Steps to Correct Misunderstandings About Their Licensure

If a remote lawyer knows or should know that the public believes the lawyer is licensed in Georgia, then FAO No. 22-1 cautions that “the lawyer must give an appropriate disclaimer.” Citing to other jurisdictions for support, including the Supreme Court of Florida, FAO No. 22-1 concluded that it is permissible for a lawyer not licensed in Georgia to be physically present in Georgia, while practicing law in another jurisdiction. For example, the Supreme Court of Florida allowed a Florida-based (but not Florida-licensed) lawyer to practice federal intellectual property law that also implicated New Jersey law from his home in Florida without violation. “Merely” living in state, is therefore not the same as practicing law “in” that state.

Notably, FAO No. 22-1 makes clear that its opinion is applicable only for those cases where a lawyer has no other connection to Georgia other than their own physical presence in the state. This would include lawyers whose legal services do not involve Georgia residents, Georgia law, or Georgia property, for example. Thus, Georgia-based lawyers not otherwise licensed in Georgia should be mindful of the way they advertise and offer their services.