The pandemic has forced many lawyers to work remotely. In some instances, that simply means working out of a home office in the same city that the lawyer’s firm is based. In others, however, lawyers have been working from second homes in states in which they are not licensed to practice law. The American Bar Association (ABA) recently addressed this latter aspect of remote work in a new ethics opinion—Formal Opinion 495, issued on Dec. 16.
ABA Model Rule of Professional Conduct 5.5(a) prohibits a lawyer from engaging in the unauthorized practice of law in a jurisdiction in which the lawyer is not actively licensed or one of the temporary authorizations in the rule does not apply. ABA Model Rule 5.5(b), in turn, prohibits a lawyer who is not authorized to practice law in a given jurisdiction from establishing “an office or other systematic and continuous presence” or “holding[ing] out to the public or otherwise represent that the lawyer is admitted to practice” there. Both provisions have been adopted widely in varying forms throughout the country.
ABA Formal Opinion 495 notes that what constitutes the “practice of law” is controlled by state law and is not uniform nationally. Interpreting the ABA Model Rules, however, the new ABA opinion finds that—absent state law to the contrary—simply working remotely from a second home in another state in which the lawyer is not licensed does not violate Model Rules 5.5(a) or 5.5(b) as long as lawyers do not represent themselves as being licensed in that jurisdiction or otherwise implying so; for example, by listing their local address on letterhead or in advertising.
ABA Formal Opinion 495 is narrowly tailored in the sense that any given scenario will turn largely on how individual states define the practice of law in this context. Some, such as Arizona by rule amendment (Arizona Ethics Rule 5.5(b)) and Florida by advisory opinion (Florida Bar Standing Committee on Unauthorized Practice of Law Advisory Op. 2019-4 (2020)) have concluded that remote work is permitted as long as lawyers do not hold themselves out as practicing locally.
Formal Opinion 495 is, nonetheless, a useful clarification. Many states do not have specific rules or advisory opinions on point and the ABA opinion provides a clear analytical lens. The opinion will also likely continue to resonate beyond the pandemic as many lawyers continue to use technology to work remotely on at least an occasional basis.
Beyond the licensing issue that lies at the heart of Formal Opinion 495, it is important to note that the opinion does not address the technology—such as cloud computing and secure communications—that makes remote work possible for lawyers. WSBA Advisory Opinions 201601 (2016) and 2215 (2012) discuss ethical and law firm risk management considerations of, respectively, virtual practice generally and cloud computing specifically. (These and others can be found on the WSBA Advisory Opinion searchable database.) ABA Formal Opinion 477R, in turn, focuses on confidentiality issues in electronic communication and data transmission.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
