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Florida on the ethical issues triggered by the remote practice of law

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Florida On The Ethical Issues Triggered by the Remote Practice of Law

Since the start of the pandemic I’ve covered how the effects of COVID-19 have drastically altered the ways in which lawyers get their work done. The majority of lawyers have worked remotely at some point over the last six months and some continue to do so, with many large and mid-sized firms announcing that work-from-home policies are in place until at least the end of the year. Similarly, because of COVID-19, courts are conducting jury trials and hearings via videoconferencing, and lawyers are using cloud-based legal software for document management, e-signatures, billing, invoicing, payment processing, communication and collaboration with clients and colleagues, and much more.

As result of these significant changes, it’s not surprising the regulatory landscape under which lawyers practice has likewise been affected. For example, last week I discussed one such case: an opinion handed down in March by the District of Columbia Court of Appeals. In that Opinion, the Court concluded that an attorney who is not a member of the District of Columbia Bar may nevertheless practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13).

The Florida State Bar Standing Committee on the Unlicensed Practice of Law (Committee) also recently weighed in, handing down Advisory Opinion 2019-4. in August. At issue in this opinion was whether it is ethically permissible for lawyers to practice law remotely from their homes in Florida, where said lawyers are: 1) unlicensed in Florida, 2) employed by firms located in other states, and 3) working on matters unrelated to Florida laws.

During the ethics hearing, the attorney seeking the Committee’s ethical guidance testified about his remote technology set up as follows: “We’ve tried to set up and utilize the technology in a fashion that essentially places me virtually in New Jersey. But for the fact that I'm physically sitting in a chair in a bedroom in Florida, every other aspect of what I do is no different than where I'm physically sitting in a chair in Eatontown, New Jersey and that's the way I tried to and have structured it so that the public sees a presence in, in Eatontown, New Jersey and no other presence."

In reaching its decision, the Committee explained that of import was that the petitioning attorney had no plans to set up a law practice in the state: “It is clear from the facts in Petitioner’s request and his testimony at the public hearing that Petitioner and his law firm will not be establishing a law office in Florida. It is equally clear that Petitioner will not be establishing a regular presence in Florida for the practice of law; he will merely be living here."

Next, prior to reaching its conclusion, the Committee highlighted the hearing testimony of one witness, an attorney, noting that it was particularly persuasive on the issue at hand: “I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.”

Finally, the Committee concluded that it was permissible for the petitioning attorney to work remotely as proposed: “It is the opinion of the Standing Committee 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.”

In other words, the pandemic has ushered in a new normal for the legal profession, and technology  - and remote working - is here to stay. Practicing law from any location is becoming an accepted practice, and the technology to facilitate this is likewise no longer ethically problematic. So if you're still on the fence regarding the use of cloud computing, what are you waiting for? The tides have turned, and there’s no better time than now to make the transition to working remotely using cloud-based technology.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.