Two recent developments in states accounting for a hefty percentage of U.S. lawyers spotlight the profession’s move toward technology-based practice models that are untethered from physical offices.
In New York, the state senate last month unanimously passed a bill that would remove the requirement — dating to 1909 — that New York-licensed lawyers residing outside New York keep a physical office in the state. And in Florida, the state supreme court gave final approval to an ethics opinion permitting out-of-state lawyers to carry out their practices remotely from Florida.
Repeal of “an antiquated law”
In the Empire State, during a decade of litigation aimed at undoing the physical-office requirement on Constitutional grounds, the state’s high court in 2015 interpreted § 470 of the Judiciary Law as requiring lawyers licensed in New York but not residing there to nonetheless maintain a brick-and-mortar office in New York. On May 12, the state senate overwhelmingly approved a bill that would repeal § 470.
The New York State Bar Association has strongly backed the repeal bill, citing the “antiquated” nature of the physical-office requirement, according to a report in Law360 (sub. req.). The bar group has argued that the old requirement reduces access to legal services (especially in rural areas), and imposes unnecessary expense on lawyers. About 25 percent of state bar members live outside New York, according to the association.
The physical-office requirement was long claimed to be justified by the need to ensure service of process on New York lawyers. But the state bar association’s working group on the issue said that was no longer true. And it found that “the requirement of a physical office is often onerous to non-resident attorneys, [while] there is no nondiscriminatory basis for imposing that burden.”
Following its approval by the state senate, the bill now will be considered by the state assembly, where it has already advanced out of that body’s judiciary committee.
Sunshine in the Sunshine State
As we reported last August, the Florida State Bar Standing Committee on the Unlicensed Practice of Law released a preliminary advisory opinion that considered whether a New Jersey IP lawyer could work for his New Jersey clients from the bedroom of his Florida home. The committee said that those 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.”
Now, the state supreme court has given final approval to the opinion, which gives official sanction to non-Florida-licensed snow birds and others who want to sojourn in the Sunshine State and continue to service their non-Florida clients. The now-official opinion raises thse guardrails:
- you can’t establish a “place of business or office” in Florida (your porch, den, etc. doesn’t count);
- your work must be solely for your regular (non-Florida) clients, on matters that don’t pertain to “Florida law;” and
- you can’t “hav[e] or [creat[e] a public presence or profile in Florida as an attorney.”
The work-from-anywhere concept was already percolating in the form of “virtual law offices” when the COVID-19 pandemic arrived and accelerated the acceptance of new practice models using remote technology to reach clients, courts and each other. The trend is likely to persist, with more developments like the recent ones in New York and Florida, so stay tuned — literally.