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ABA’s Remote Work Opinion a ‘Major Step’ Forward for Mobility

Dec. 17, 2020, 9:28 PM

An American Bar Association ethics opinion giving lawyers more flexibility to work remotely across state lines is a big step forward for attorney mobility in a profession where practitioners often feel tethered to states where they are licensed, legal experts say.

The bar group, in a Wednesday opinion prompted by the effects of working remotely during the pandemic but likely to impact the profession long after, said lawyers can physically work in a state where they’re not barred, or licensed, as long as they only practice the law of the state where they are admitted.

“The advice provided in this opinion is completely logical,” said Kendra L. Basner, a partner with O’Rielly & Roche in San Francisco.

“The livelihood of a lawyer who is licensed to practice the law of a particular jurisdiction should not be physically confined only to that particular jurisdiction, especially in this time when it is clear that competent legal services can be provided remotely from any location,” Basner said.

But even with the ABA taking action, Florida and other states that take a tougher line on the issue may be hard to convince. A comment addressing Florida’s unauthorized practice rule specifically bans the practice of another state’s law while sitting in Florida.

Pandemic Push

The pandemic has revolutionized remote work for millions of Americans, including lawyers. But unlike many other business sectors where remote work easily crosses regions, lawyers are restricted in what work they can do and where they can do it. Many states make it costly and difficult for attorneys licensed elsewhere to obtain credentials for practicing within their borders without first passing their bar exam.

Dramatic changes in work practices prompted by the pandemic appear to have accelerated the push for ABA guidance on what’s permissible on the question of multi-jurisdictional practice as states ease or look to relax their own rules with more lawyers working or wanting to work remotely.

It may be that the pandemic “fast-tracked” the ABA’s opinion, said Noah D. Fiedler, a partner with Hinshaw & Culbertson in Milwaukee.

ABA’s Model Rule 5.5 on unauthorized practice has been the basis for the standard in most states. It says lawyers admitted in one U.S. jurisdiction and not disbarred or suspended may provide legal services in another jurisdiction only temporarily and with strict conditions. Violators could be subject to discipline although that’s believed to be rare.

The rule is meant to protect the public from incompetent practitioners, the ABA opinion said.

But in clarifying the rule in its latest opinion, the ABA said the “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,” the opinion said.

This means that lawyers working from one state but practicing another state’s law and following all required professional guidelines shouldn’t be found in breach of rules governing the unauthorized practice of law.

While it applies to all lawyers, the rule tends to affect those in bigger firms—who are more likely to travel to an office in another state—more than it does solo or small practitioners.

A handful of states relaxed their prohibitions prior to Covid-19, and other jurisdictions, including the District of Columbia, have followed suit with temporary measures since the pandemic hit.

Fiedler said that the most frequent question that he’s received from clients this year is whether they can be disciplined for working from home during the pandemic, because their home isn’t in a state where they’re licensed.

“Until now, I had to tell them that it’s unlikely they’ll be called in front of their disciplinary board but there’s always a chance,” Fiedler said.

Rule 5.5 was always a “looming specter” for lawyers in border communities like Toledo, Ohio, and Chicago, where lawyers live in one state and are barred and work in another, he said.

But the ABA’s “common-sense guidance” is a “major step forward for lawyer mobility,” Fiedler said.

While the opinion is only advisory and not authoritative, it’s “pretty convincing” for bar authorities he said.

Only a handful of states, including Maine, Utah, and Arizona expressly allow lawyers to practice in a state where they’re not barred.

Basner hopes that the remaining states will follow the ABA’s guidance and “enact a ‘butt-in-seat’ exception to their UPL rule.”

The issue of a lawyer who practices from a state where the lawyer isn’t licensed is known as the “butt-in-seat” problem.

States don’t have any “justifiable interest” in regulating these lawyers, Basner said.

It should have always been OK for lawyers to practice where they’re not licensed, said Thomas E. Spahn, a litigator with McGuireWoods in Tysons Corner, Va., outside Washington.

“With any luck, the opinion will push other states to do it,” Spahn said.

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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