Whether to flee from areas experiencing COVID-19 outbreaks, or simply to take advantage of the opportunity to work far away from the office, lawyers may sometimes wish to work remotely from a jurisdiction other than the one where they are licensed. Though you may dream of “practicing” from a laptop in the distant California mountains, a cabin in the Minnesota forest or on a Hawaii beach, crossing state lines remains a significant event for licensed attorneys. Most jurisdictions have adopted some version of ABA Model Rule 5.5 which addresses multi-jurisdictional practice, but you must carefully adhere to the particular jurisdiction’s ethics rules plus any other jurisdiction-specific regulations in order to temporarily work remotely from your location of choice.
Home field advantage
In the United States, individual states compete for every imaginable resource, including legal talent and business. Model Rule 5.5(b) prohibits lawyers who are not admitted to practice in a jurisdiction from either (1) establishing “an office or other systematic and continuous presence,” for the practice of law or (2) representing “to the public” that the lawyer is authorized to practice. While many “creative class” professionals can work from any place with a nearby power outlet and a solid Wi-Fi connection, lawyers must remember to follow local “unauthorized practice of law” rules (and perhaps remember that they too benefit from such protectionist measures in their home jurisdiction).
Belt and suspenders approach
If you intend to work remotely for an extended period from a jurisdiction where you are not licensed, the safest approach is to become licensed in that jurisdiction. Assuming no rational human would ever elect to take another bar exam, you might consider “waiving in” to your remote work site of choice. However, most states require lawyers to practice “full time” for three to five years before they are eligible to do so, and even then, the process can be cumbersome, lengthy and expensive. Some states (including the aforementioned California, with all its idyllic remote work destinations) only allow admission through bar passage.
Temporary remote work “safe harbors”
Model Rule 5.5(c) provides a number of “safe harbors” through which lawyers can practice in a different jurisdiction on a “temporary basis.” While Rules 5.5(c)(1)-(3) authorize such temporary practice in specific scenarios (active association with a local attorney, pro hac vice admission and pending alternative dispute resolution (ADR) matters), Rule 5.5(c)(4) provides the broad “catch-all” exception.
The rule authorizes lawyers who are licensed and in good standing in their home jurisdictions to provide legal services that “are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” The rule includes several elements:
- Temporary basis. Though review of the remote work state’s rules would be required to understand the applicable definition of “temporary,” a lawyer should be mindful to not work remotely in a different jurisdiction for so long, or in such a way, as to trigger the prohibition of Rule of 5.5(b) on establishing a systematic or continuous presence. The practical analysis can be difficult: there are no bright lines on how long your temporary practice could last before you would risk a state bar regulator’s investment of resources into an investigation of your activity.
- Not within 5.5(c)(2)-(3). Whereas Rules 5.5(c)(2)-(3) contemplate specific pending litigation or ADR matters in the remote work jurisdiction, work under (c)(4) contemplates general legal practice that is tied to the lawyer’s home jurisdiction.
- Reasonable relation. As we have previously discussed, Comment 14 to Rule 5.5(c) lists factors that may indicate a “reasonable relationship” between the legal services rendered from the remote work state and the lawyer’s home state. Some factors include whether the client has significant contacts in the lawyer’s home state and whether the matter has significant connections to the lawyer’s home state.
According to a recent M.I.T. study, of those employed pre-COVID-19, about 50 percent are now working from home, including 35 percent who report they were commuting and recently switched to working from home. Another study predicts that 30 percent of the U.S. workforce will regularly work remotely within two years. Lawyers are no exception – you can hear crickets chirping down the hallways in law firm offices around the country. However, if you decide to head west for a few months and work remotely from California, or east to the rockbound shores of Maine, be sure that you pay careful attention to the nuances of that jurisdiction’s unauthorized practice regulations, including Rule 5.5.