The rapid evolution of technology over 2 years of COVID not only allows for a remote practice, but in many regards encourages it. So much so that some firms are now hiring attorneys who will work primarily – if not exclusively – remotely.
The focus of regulators’ concerns is shifting less on where the lawyer is physically located when practicing, and more so on what they are doing once they get there. Some states are now articulating greater tolerance for lawyers licensed in other jurisdictions to work remotely within their borders. Change can be a wonderful thing, but lawyers must still be cognizant of when and how authorized remote practice intersects with (or violates) rules against the unauthorized practice of law. Lawyers must remember that, even if we are permitted to work in another state, we do not have free rein to operate however we would like within that remote location. Generally, physical presence is permissible, but a legal presence is not.
UPL rules were created to protect the public, and protection of clients in a state is still the issue with which new rules are concerned as demonstrated by the examples below. Each example analyzes the permissibility of remote practice by how the lawyer is held out to the public. When contemplating whether your conduct is crossing the line into UPL territory, this is a guiding principle to bear in mind.
As we pointed out before, a 2021 Florida advisory opinion gave the green light to lawyers who want to work there remotely. And earlier this year the Florida Supreme Court amended the comment to its Rule 4-5.5, which now clarifies that an out-of-state lawyer may work remotely in Florida for an extended time, as long as he or she is only working on non-Florida matters and not holding herself out publicly as having a Florida presence.
The Buckeye State expanded the exceptions to its Rule to permit lawyers admitted and in good standing in another U.S. jurisdiction to have a systematic and continuous presence in Ohio, so long as the lawyer does not solicit or accept clients in Ohio, hold herself out as being an Ohio lawyer, or violate certain other rules.
New Jersey’s joint advisory opinion issued in 2021 drives home the distinction between holding yourself out to the public as being a lawyer versus mere presence as a private citizen. Citing ABA Formal Opinion 495 in support, the opinion clarified that lawyers are not holding themselves out to the public when they are invisible as a lawyer. The opinion provided helpful examples of conduct that would not be permitted, such as maintaining a New Jersey law office, advertising that the lawyer practices in New Jersey or is available to practice in New Jersey, or identifying a New Jersey address for mail.
While clarifying and expanding the permissibility of remote work is a trend to be celebrated, do not forget that each jurisdiction’s rules can vary, and sometimes in very material ways. Only time will help shape what conduct is deemed to have crossed the line into a lawyer holding herself out as being licensed in a jurisdiction where the lawyer is not. In the meantime, it is not enough to simply refrain from “hanging out a shingle.” Here are some pointers:
- Consider how your presence might be perceived by the public in the remote state
- Be careful not to suggest that you are licensed or can otherwise serve people in that state
- Don’t focus solely on one state’s UPL laws – you must understand and consider the UPL laws in both your state of licensure and the remote state
- Absent a specific statute or rule authorizing your practice, only handle matters for clients or before tribunals in states where you are licensed, no matter where you are located