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The Ethics of Working Remotely from Another Jurisdiction

12/21/2020

The Ethics of Working Remotely from Another Jurisdiction

By: Mary F. Andreoni, ARDC Ethics Education Senior Counsel

December 21, 2020

Location, location, location. Most of us are working remotely from home and increasingly more lawyers are (or are considering) working remotely from locations in which they’re not licensed. Nine months into the pandemic, are lawyers unwittingly engaged in the authorized practice of law? As we rethink what it means to practice remotely, does it really matter where a lawyer physically is located if the lawyer is working solely on matters relating to the jurisdiction in which admitted?  Can a lawyer live in one location but practice law from another? The answer to that – it depends on your location. 

ABA Model Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

ABA Model Rule 5.5 prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction or assist another lawyer in doing so, with some exceptions. Unless authorized by the Rule or other law, lawyers not admitted to practice in the jurisdiction are prohibited from establishing “an office or other systematic and continuous presence”, physical or virtual, in that jurisdiction (Rule 5.5(b)) unless those legal services “(1) are provided to the lawyer’s employer or its organizational affiliates [e.g., in-house counsel], [and] are not services for which the forum requires pro hac vice admission;…or (2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.”  See Rule 5.5(d)(1)-(2).

Although Rule 5.5. has an exception for services provided on a “temporary” basis that are “reasonably related to the lawyer's practice” in their state of licensure (Rule 5.5(c)), it’s unlikely jurisdictions would view a lawyer’s regular presence for the practice of law in their state within the temporary- or occasional-practice exception. Moreover, there is no definition of what is meant by “temporary” and no bright line distinguishing how long a lawyer’s “temporary” practice could morph into “continuous” practice and trigger a violation of Rule 5.5.  See Comment [6] to Rule 5.5.  

Almost every state, including Illinois, has adopted some form of ABA Model Rule 5.5, however, they have done so with a patchwork of variations and exceptions. Given the lack of uniform guidance, one of the riskiest ethical challenges for lawyers is engaging in the unauthorized practice of law (UPL). The new remote practice culture heightens the potential of running afoul of UPL.

Out-of-State Lawyers Working Remotely in Illinois

Illinois Rule 5.5(d)(2) is substantially the same as the ABA Model Rule and recognizes that a U.S. or foreign lawyer in good standing may render legal services in Illinois when authorized by Illinois or federal law. Practice under this rule exempts lawyers from the prohibition against establishing an office or other systematic and continuous presence in Illinois. See ISBA Opinion No. 15-01 (May 2015) (In-house lawyer, admitted in another state but with a permanent office in Illinois, may practice before the United States Patent and Trademark Office) and Opinion 13-08 (Oct. 2013) (Out-of-state lawyer may practice immigration law in Illinois). A recent disciplinary case concluded that a New York-admitted lawyer who moved to Illinois and established a permanent residency did not violate IL Rule 5.5(b)(1) because, pursuant to IL Rule 5.5(d)(2), the lawyer may establish an office and presence in Illinois in order to maintain his federal practice. 

It is not entirely clear, however, if this exception applies beyond a practice authorized by Illinois or federal law and permits a lawyer to continue to practice the law of the lawyer’s license jurisdiction when relocating to Illinois.  A recent ISBA opinion would seem to give tacit support of this interpretation. ISBA Opinion 20-08 (Oct. 2020) concluded that an out-of-state lawyer, awaiting admission in Illinois, may work as a lawyer from an office in Illinois on cases in state and federal courts to which she is already admitted to practice so long as those state and federal jurisdictions permit such practice. 

Illinois Lawyers Working Remotely Outside of Illinois

For Illinois lawyers residing and working remotely from outside Illinois, a handful of states, Minnesota, North Carolina, Arizona and New Hampshire, have amended their Rule 5.5(d) prior to Covid-19, and allow lawyers to practice there if they’re licensed elsewhere so long as they disclose that they’re not licensed to practice in that state. 

Arizona’s and New Hampshire’s amendments expressly provide that it is not the unauthorized practice of law to practice law remotely—i.e., digitally— while being physically present in their state if the lawyer’s practice exclusively involves the law of the jurisdiction in which the lawyer is admitted. See Arizona RPC 5.5(d); N.H. R P C 5.5(d). For example, New Hampshire added paragraph (3) to its Rule 5.5(d) in October 2016 to state that a lawyer not licensed in their state may provide legal services through an office or systematic and continuous presence that “(3) relate solely to the law of a jurisdiction in which the lawyer is admitted.” 

Since the pandemic, the District of Columbia recently announced temporary measures to allow lawyers who live in the District and are not licensed there, but normally practice from an office outside the District, to telecommute during the COVID-19 pandemic.  See D.C. Opinion No. 24-20 (March 23, 2020).

Similarly, Florida Advisory Opinion #2019-4 (Aug. 17, 2020), concluded that it is not UPL for an out-of-state licensed lawyer to practice remotely from a location in Florida, provided there is no holding out by the lawyer of a Florida office or law practice, on matters not involving Florida law, and without having or creating a public presence or profile in Florida as an attorney.  The Florida opinion cites to a May 2019 Utah ethics opinion issued a year earlier (Utah Opinion No. 19-03 (May 2019), advising that lawyers licensed in another state who establish a home in Utah and practice law for clients from the state where the attorney is licensed isn’t violating practice rules as long as the lawyer doesn’t solicit Utah clients or establish an office there.

1.In re Salem, M.R.29649, 2016PR00043 (Jan. 29, 2019) Lawyer disciplined and suspended 90 days and until further order of the Court in connection with his pro se appearance in an Illinois forcible detainer proceeding. The lawyer was found to have improperly held himself out as an Illinois attorney in violation of Rule 5.5(b)(2) through his communications to the court, including his letterhead, which omitted his lack of an Illinois license, leading the judge to believe he was licensed in Illinois.   

Post-Pandemic Future

While it's unlikely lawyers will be prosecuted, at least during the pandemic, it’s clear that remote working is here to stay. The trend toward recognizing and permitting remote working may spur further changes to UPL rules across the country to allow a lawyer to move to another state but continue representing clients from the lawyer’s licensed state.  

In the meantime, it’s important for lawyers working remotely in jurisdictions in which they are not admitted to:
(1) review the UPL rules of both the jurisdiction in which they are licensed and the jurisdiction in which they are considering for a remote practice;
(2) comply with any registration or other requirements imposed by the remote jurisdiction;
(3) not hold out to the public or state or imply as being admitted to practice in the remote jurisdiction;
(4) consider how having a remote practice might impact a later application for admission in the remote jurisdiction; and
(5) know that regardless of whether authorized to practice pursuant to Rule 5.5 or not, lawyers are subject to the disciplinary authority of the remote jurisdiction and can also face reciprocal discipline in their licensing jurisdiction.  See ABA Model Rule 8.5(a); IL RPC 8.5(a)

2. For a comparison of state rules as adopted to individual ABA Model Rules of Professional Conduct, including Rule 5.5, go to ABA Jurisdictional Rules Comparison Charts at https://www.americanbar.org/groups/professional_responsibility/policy/rule_charts/.

Addendum: After this article was submitted for publication, the American Bar Association (ABA) issued ABA Formal Opinion 495 (12/16/20) which provides additional guidance for lawyers working remotely.