The Standing Committee on Ethics and Professional Responsibility issued an opinion regarding lawyers working remotely.  The Committee initially notes that: “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. A lawyer’s residence may not be the same jurisdiction where a lawyer is licensed. Thus, some lawyers have either chosen or been forced to remotely carry on their practice of the law of the jurisdiction or jurisdictions in which they are licensed while being physically present in a jurisdiction in which they are not licensed to practice.”

Accordingly, lawyers may ethically engage in practicing law as authorized by their licensing jurisdiction while physically present in a jurisdiction in which they are not admitted – as long as the jurisdiction where they are located has not determined that the conduct constitutes the unauthorized practice of law, they do not hold themselves out as being licensed to practice in the jurisdiction where they are located, do not advertise or otherwise hold themselves out as having an office in that jurisdiction, and do not provide or offer to provide legal services in that jurisdiction.

Explaining further:

Model Rule 5.5(a) prohibits lawyers from engaging in the unauthorized practice of law – i.e. in violation of the regulation of the legal profession in that jurisdiction. Because it is not the Committee’s purview to determine matters of substantive law, it does not opine on whether working remotely by practicing the law of one’s licensing jurisdiction in a particular jurisdiction where one is not licensed constitutes the unauthorized practice of law under the law of that jurisdiction. Absent such a determination, however, a lawyer may practice law pursuant to the jurisdiction(s) in which the lawyer is licensed even from a physical location where the lawyer is not licensed.  “A local jurisdiction has no real interest in prohibiting a lawyer from practicing the law of a jurisdiction in which that lawyer is licensed and therefore qualified to represent clients in that jurisdiction. A local jurisdiction, however, does have an interest in ensuring lawyers practicing in its jurisdiction are competent to do so….”

At the same time:

Model Rule 5.5(b)(1) prohibits a lawyer from establishing an office in the jurisdiction in which the lawyer is not licensed.  “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…. The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law. Conversely, a lawyer who includes a local jurisdiction address on websites, letterhead, business cards, or advertising may be said to have established an office or a systematic and continuous presence in the local jurisdiction for the practice of law.”

Subparagraph (b)(2) prohibits a lawyer from holding out to the public or otherwise representing that the lawyer is admitted to practice law in the jurisdiction in which the lawyer is not admitted. A lawyer practicing remotely may not state or imply that the lawyer is licensed to practice law in that jurisdiction.

Model Rule 5.5(c)(4) provides that lawyers admitted to practice in another United States jurisdiction may provide legal services on a temporary basis in the local jurisdiction that arise out of or reasonably relate to the lawyer’s practice in a jurisdiction where the lawyer is admitted. Comment [6] notes that there is no single definition for what is “temporary” and that it may include services that are provided on a recurring basis or for an extended period of time. “For example, in 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.”

Also, Model Rule 5.5(d)(2) permits a lawyer admitted in another jurisdiction to provide legal services in the local jurisdiction that they are authorized to provide by Federal or other law or rule to provide.

A lawyer may be subject to discipline in the local jurisdiction, as well as the licensing jurisdiction, by providing services in the local jurisdiction under Model Rule 8.5(a).

 

ABA Formal Opinion No. 495  (Dec. 16, 2020).