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ABA Issues Ethics Guidance for Practicing Remotely

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Can you practice virtually from another state?

May a lawyer who is licensed in Wisconsin practice remotely from her second home in Texas even though she is unlicensed in the Lone Star State?

Is it ethical for her to say on her website that her practice is temporarily located in Texas? What if she occasionally works out of the office of a lawyer-friend who practices in Houston?

These and related ethical issues have arisen over the past 18 months as lawyers grapple with a brave new world of remote work, social distancing, and Zoom litigation.

Formal Ethics Opinion 495, issued in December 2020 by the ABA Standing Committee on Ethics and Professional Responsibility, provides much-needed guidance for navigating these uncharted seas.

The big takeaway: a lawyer does not establish a “systematic presence” in a state simply by physically being there.

“The lawyer’s physical presence in the local jurisdiction is incidental,” says ABA Formal Opinion 495. “It is not for the practice of law.”

The opinion, while not legally binding on states or individual lawyers, creates guardrails and go-bys for best ethical practices, and its holding is largely consistent with that of several states that have considered these issues.

From ABA Formal Opinion 495: “[I]n the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.”

Read ABA Formal Opinion 495 here.
Read an ABA press release on the opinion here.
Read the article “What are ethics issues for lawyers practicing remotely from a different state during the pandemic?” in the ABA Journal here.

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ABA Formal Ethics Opinion 495

Following are some key excerpts:

“If 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, then Model Rule 5.5(a) also would prohibit the lawyer from doing so.”

“Absent such a determination, this Committee’s opinion is that a lawyer may practice law pursuant to the jurisdiction(s) in which the lawyer is licensed (the “licensing jurisdiction”) even from a physical location where the lawyer is not licensed (the “local jurisdiction”) under specific parameters.”

“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.”

If you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan, you can stay on top of ethics and risk management news by being a member of Alta Pro Lawyers RPG. You’ll get access to free webinars, the Pro Practice Playbook, Reminger ProLink, Ask the Risk Pro and more. Here’s how to join.

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