ABA Formal Opinion 495 Addresses Unauthorized Practice of Law by Remote Attorneys
As a consequence of the COVID-19 pandermic, most attorneys have been working remotely since March or April of last year. In many instances, remote attorneys have been in the uncomfortable position of working from jurisdictions where they are not admitted to practice law, raising ethics concerns.
On December 16, 2020, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495, addressing remote-work by attorneys residing in jurisdictions where they are not authorized to practice law. Formal Opinion 495 states that:
Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d) including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.
The Opinion recognized that the purposes of Rule 5.5 “to protect the public from unlicensed and unqualified practitioners of law.” The opinion concluded that this purpose “is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.
Some jurisdictions, including the District of Columbia and Florida, have eased restrictions on lawyers working where they are not licensed during the pandemic.
- In late March, the Committee on Unauthorized Practice of Law for the District of Columbia Court of Appeals released an opiniontitled “Teleworking from Home and the COVID-19 Pandemic.” The opinion identified circumstances under which lawyers who are not members of the DC Bar could practice in the jurisdiction in light of the increased need for remote working amid COVID-19. To do so, an attorney would need to be practicing from home due to the coronavirus; maintain a law office in the jurisdiction where they are admitted to practice; and avoid using a DC address in any business document or holding themselves out as authorized to practice in the district. The lawyer would also need to forego regularly conducting in-person meetings with clients or third parties in DC.
- In Florida, a patent attorney licensed in New Jersey asked a Florida bar committee whether he would engage in the unauthorized practice of law if he worked from his home in Florida solely on federal intellectual property matters. The Florida Bar’s Standing Committee on the Unlicensed Practice of Law wrote in an August 17, 2020 draft advisory opinion “that the petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law.”
Several other states, including Arizona, Minnesota, New Hampshire, North Carolina, Maine, and Utah, already allowed lawyers to practice in their jurisdictions if they are licensed elsewhere as long as they disclose that they are not licensed to practice in that state. For the remaining jurisdictions, the ABA’s Formal Opinion should be instructive to state bar associations, many of which have been asked to review their remote practice rules. ABA formal opinions are only advisory. But, given the challenges presented by COVID-19, states should adopt the same position, either by issuing a similar opinion or amending their rules of conduct.