Since March, many attorneys have swapped commutes to the office with strolls to home workstations, practicing virtually in jurisdictions where the lawyer is licensed, even if they’re physically located elsewhere. In response to this new normal, the American Bar Association (ABA) issued Opinion 495 on December 16, addressing remote work and the unauthorized practice of law (UPL).
ABA Opinion 495 states:
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.
UPL and Model Rule 5.5
Model Rule 5.5 was created to protect the public from unlicensed and unqualified lawyers. However, cross–border enforcement of UPL can be unclear.
In a recent blog post, Mark C. Palmer, Chief Counsel at the Commission on Professionalism, wrote on the case of a Colorado lawyer who was found to have engaged in UPL when he contacted a Minnesota lawyer via email to help his in-laws resolve a debt collection dispute. Several months later, the opposing counsel reported the Colorado lawyer for UPL and the Minnesota Supreme Court sided with a formal admonition. In that case, the Court found that the lawyer, licensed and residing in Colorado, practiced Minnesota law without authorization.
ABA Opinion 495 addresses a different situation: when a lawyer licensed in one state practices the law of their licensing state from a different state, and one in which they’re not licensed. ABA Opinion 495 says the purpose of Model Rule 5.5 isn’t served if the attorney is “invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”
Breaking it down further, ABA Opinion 495 says that Model Rule 5.5(a) prohibits lawyers from practicing law in a jurisdiction that has determined that remote work in that jurisdiction constitutes the unauthorized or unlicensed practice of law. But, absent this, a lawyer may practice pursuant to their licensing jurisdiction, even if they’re physically located elsewhere.
Moreover, in response to Model Rule 5.5(b)(1), which prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence in [the] jurisdiction [in which the lawyer is not licensed] for the practice of law,” ABA Opinion 495 states that a local office isn’t “established” if the lawyer doesn’t hold out to the public a local address as an office.
Finally, Model Rule 5.5(c)(4) provides that lawyers may provide temporary legal services in a local jurisdiction that arise out of or reasonably relate to the lawyer’s practice in the jurisdiction where they’re licensed. Forced office closures as a result of the pandemic have created this “temporary” workplace situation for many.
Utah, Maine, Arizona, New Hampshire, and Minnesota have previously permitted this practice in their jurisdictions.
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