Are you a snow bird? Do you or one of your partners have a second home in Florida? Many do, and it’s long been a source of anxiety that working remotely from that home might be a problem. After all, many of those doing client work while in the Sunshine State are not licensed to practice there, and the unauthorized practice of law is a criminal offense in Florida.
As technology (not to mention the pandemic) has made remote work easier and far more common (even for those without a second home), concerns over unauthorized practice have increased. (See our past discussion here.) Now comes some good news for those who were worried (if they were even thinking about it).
Last week the Florida State Bar Standing Committee on the Unlicensed Practice of Law released an advisory opinion on the issue. The opinion is a preliminary interpretation and isn’t a final court action, but if finalized will provide some comfort.
Work from your bedroom?
The Committee examined a question from an IP attorney licensed in and practicing at a New Jersey firm, who wanted to know if he was permitted to do work for his clients while in the bedroom of his Florida house. The answer could well have been skewed by his work being limited to IP, given that Florida (and the U.S, Supreme Court) recognizes an exception to unauthorized practice rules for IP attorneys because it deals exclusively with federal law.
However, the opinion appears to endorse practice by most anyone. It said that the facts “quite simply, do not implicate the unlicensed practice of law in Florida. Petitioner is not practicing Florida law or providing legal services for Florida residents. Nor is he or his law firm holding out to the public as having a Florida presence.” “All indicia point to Petitioner’s practice of law as being in New Jersey, not in Florida. …[S]ince there is no attempt by Petitioner or his firm to create a public presence in Florida, Petitioner does not have a presence in Florida for the practice of law. … Because Petitioner is not providing legal services to Florida clients, no Floridians are being harmed by Petitioner’s activity and there are no interests of Floridians that need to be protected by this Court.”
The Committee also found the testimony of a Florida-licensed attorney “to be particularly persuasive.” She said that, “the future, if not the present, will involve more and more attorneys … working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.”
No unlicensed practice
Relying on the testimony and the rationale of a recent opinion from Utah, the Committee concluded that an attorney who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from a private Florida residence under these circumstances “does not establish a regular presence in Florida for the practice of law. Consequently, … it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.”