Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
ABA Ethics Opinion on Working Remotely
In 2020, the pandemic changed just about everything. One of the biggest areas impacted was the way that work was performed. Out of necessity, it was the year of working remotely for businesses across the country. And with increasing COVID-19 surges across the country and vaccine availability for the general population at least 6 months away, working remotely will continue to be commonplace for months to come.
For lawyers, working from home presents unique ethical issues due to the confidential nature of the information handled by law offices. Fortunately, if you’re a lawyer working remotely, the American Bar Association handed down an opinion just last week that provides some helpful ethical guidance.
In Formal Opinion 495, the Standing Committee on Ethics and Professional Responsibility addressed one of the many issues presented when lawyers engage in remote work: whether it’s permissible for lawyers to handle cases in the jurisdiction(s) in which they are licensed while working from a physical location in which they are not licensed.
The Committee began by acknowledging the reality of the situation that lawyers find themselves in as a result of the pandemic: “Lawyers, like others, have more frequently been working remotely: practicing law mainly through electronic means. Technology has made it possible for a lawyer to practice virtually in a jurisdiction where the lawyer is licensed, providing legal services to residents of that jurisdiction, even though the lawyer may be physically located in a different jurisdiction where the lawyer is not licensed.”
Before addressing the issues presented, the Committee clarified that its opinion did not apply in situations where “a particular jurisdiction has made the determination, by statute, rule, case law, or opinion, that a lawyer working remotely while physically located in that jurisdiction constitutes the unauthorized or unlicensed practice of law.”
Next the Committee turned to the jurisdictions that had no prohibitions of that nature in place, explaining that ABA Model Rule 5.5(a) prevents lawyers from engaging in the unauthorized practice of law in jurisdictions in which they are not licensed. According to the Committee, the prohibition is not absolute, and does not apply in situations where lawyers are temporarily practicing law from locations in which they are not licensed as long as they avoid the outward appearance of “establishing” a local office: “A local office is not ‘established’ within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.”
As the Committee explained, lawyers working from home due to COVID-19 restrictions in a location in which they are not authorized to practice is an example of a temporary situation that usually does not trigger the prohibitions of Model Rule 5.5.: “(I)n a pandemic that results in safety measures—regardless of whether the safety measures are governmentally mandated—that include physical closure or limited use of law offices, lawyers may temporarily be working remotely. How long that temporary period lasts could vary significantly based on the need to address the pandemic.”
The Committee emphasized that the rationale behind Model Rule 5.5 is to protect legal consumers from unlicensed or unqualified attorneys, and that “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.”
So those of you who are practicing law from a location in which you are not licensed and plan to continue doing so until the pandemic is behind us can breathe a sigh of relief. The ABA has given this practice the green light. So rest easy knowing that your actions are ethically permissible as you head into the holiday season.
And speaking of the holidays, do me a favor: make sure to take some time off over the next few weeks, regardless of where you’re working. Rest, relax, and enjoy time with your loved ones. It’s been a long, challenging year. You deserve it. We all do. Happy Holidays!
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 email@example.com.