Spotlight on Ethics: Rules of Remote Work

February 2021

By Carole J. Buckner

With the ongoing pandemic, more lawyers than ever before are working remotely. Can a lawyer admitted to practice law in California relocate and practice California law while located in another state? Can a lawyer who is not admitted to practice law in California practice the law of another state while physically located in California?

Whether such practices are permissible depends on both the law in California and the law of the other state. With 49 other states, there are, potentially, 49 answers. To complicate things a bit further, the type of practice involved, that is, whether the lawyer is practicing litigation, arbitration, transactional or federal law, must also be factored into the analysis. Fortunately, the American Bar Association has provided lawyers with some new guidance on this topic. In addition, California has provided guidance to lawyers working remotely about a range of ethical considerations that apply. This article examines the ABA’s opinion, as well as a prior California ethics opinion on the virtual practice of law.

In December 2020, the ABA issued an ethics opinion on Lawyers Working Remotely.[1]  Much of the analysis in this new ABA Opinion turns on ABA Model Rule 5.5 (ABA MR 5.5), but lawyers must bear in mind that this is only a “model” rule. That said, California’s rules and related provisions of the State Bar Act are substantially similar, although not identical. ABA MR 5.5 governs the unauthorized practice of law and multijurisdictional practice of law. ABA MR 5.5 lays out several prohibitions. First, lawyers shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. The California version of Rule 5.5 (CRPC 5.5) is similar. In addition, California Business and Professions Code Sections 6125 and 6126 prohibit the unauthorized practice of law. Next, ABA MR 5.5 provides that a lawyer shall not assist another lawyer in practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Again, CRPC 5.5 is similar.

ABA MR 5.5 provides that a lawyer who is not admitted to practice in a particular jurisdiction shall not establish an office or “other systematic and continuous presence” in that jurisdiction for the practice of law, except as permitted by the Model Rules, or “other law,” to include federal law and administrative law. CRPC 5.5 is similar. But this language may be ambiguous in a pandemic where a lawyer may practice from another jurisdiction for an extended “continuous” period of time out of choice or necessity. In addition, the lawyer must not “hold out” to the public, or represent that the lawyer is admitted to practice law in a jurisdiction where the lawyer may happen to be physically located, but not admitted to practice. Again, CRPC 5.5 is similar. In addition, under California law, any person holding out as entitled to practice law or otherwise practicing law, who is not an active licensee of the State Bar or otherwise authorized to practice law in California is guilty of a misdemeanor.

ABA MR 5.5 allows lawyers admitted in another jurisdiction to provide legal services on a “temporary” basis, under certain limited conditions.[2] California Rule of Court (CRC) 9.47 allows attorneys to practice law “temporarily” in California as part of litigation. ABA MR 5.5 also includes special provisions for in-house counsel. California has somewhat analogous provisions in the California Rules of Court, governing out-of-state attorneys acting as in-house counsel.

As the ABA points out, lawyers have more frequently been working remotely through electronic means, as technology continues to enable a virtual law practice.[3] The ABA determined that “Lawyers may ethically engage in practicing law as authorized by their licensing jurisdiction while being physically present in a jurisdiction in which they are not admitted.” Importantly, as to substantive scope, a lawyer’s practice while physically located in a state in which the lawyer is not licensed may include the law of the state in which the lawyer is licensed as well as practice involving federal law, including appearance before federal agencies.[4]

One important limitation on the ABA’s overall conclusion is that each jurisdiction determines what constitutes the unauthorized practice of law in that particular jurisdiction. California has done so, as further discussed below, and other states have also done so. As the ABA points out, Maine and Utah agree that just because a lawyer is working on matters in the state where the lawyer is licensed from afar, does not mean that the lawyer is engaged in the unauthorized practice of law.[5] Further, the state in which the lawyer is located has no interest in regulating the out-of-state practice simply because the lawyer has a private home in another state in which the lawyer is not licensed.[6]

Still, it is very important that a lawyer working remotely be familiar with any statutes, rules and case law that govern the practice of law in the jurisdiction in which the lawyer is physically located and determine whether the lawyer’s physically conducting the practice of law within the state constitutes the unauthorized practice of law according to the laws of that particular state.[7] If the law of the state in which the lawyer is physically located considers remote practice the unauthorized practice of law, then it is prohibited. Jurisdictions vary. Some states still follow the so-called “butt-in-the-seat” rule. Other states have temporarily authorized remote practice.[8]

California Guidance

The California State Bar considered remote work in a pre-pandemic era ethics opinion.[9] In that opinion, COPRAC indicated that a virtual law practice was permissible. The opinion authorized cloud-based legal practice, including communications with clients via the internet. COPRAC endorsed the use of a secure internet portal that is password protected and encrypted. This includes payment for legal services through an online portal. COPRAC further confirmed that a lawyer can ethically conduct legal services through a third-party internet-based vendor. COPRAC’s opinion emphasized several important ethical obligations, including the duty of confidentiality. Attorneys must comply with Rule 1.6 of the California Rules of Professional Conduct, as well as Section 6068(e) of the Business and Professions Code, which obligates lawyers to protect client confidential information. This requires that lawyers understand the technical parameters of the technology they are using in connection with any virtual or remote practice. Working remotely makes it easier to expand the geographic reach of a lawyer’s practice. However, COPRAC cautioned that lawyers practicing remotely must avoid engaging in the unauthorized practice of law in violation of applicable restrictions.

Establishing an Office

A lawyer who establishes an office in a jurisdiction in which the lawyer is not admitted to practice law is at risk. California’s Rule 5.5 provides that a lawyer not admitted in California shall not establish or maintain a resident office or other systematic or continuous presence in California for the practice of law, except as authorized by other rules or other law.[10] The ABA opinion indicates that to “establish” means “to found, institute, build or bring into being on a firm or stable basis.”[11] To avoid establishing an office, a lawyer should not hold an address out to the public in the local jurisdiction where the lawyer is physically present, but unlicensed, and should not use a local address on letterhead, business cards, websites.”[12] Under such circumstances, the lawyer’s presence in the local jurisdiction is “incidental.” A lawyer who does include a local address on websites, letterhead, business cards or advertising has established an office.[13]

Advertising

Lawyers working remotely should also carefully consider their advertising. Lawyers not admitted to practice law in California should not “hold out” to the public or otherwise represent the lawyer is admitted to practice law where in fact the lawyer is not admitted.[14] Lawyers are prohibited from making false or misleading statements about the lawyer or the lawyer’s services.[15] Any advertising should clearly reflect applicable jurisdictional limitations.[16] Lawyers cannot advertise to provide legal services in the local jurisdiction in which they are physically located, but not admitted to practice.[17]

Other Ethical Considerations

Several other ethical considerations arise from a virtual or remote law practice. The duty of competence continues to apply,[18] and includes a duty to assure that both attorney and client understand any technology being used. The duty of communication[19] also is implicated and lawyers must assure that clients are receiving remote communications. Lawyers should also consider whether a particular representation is appropriate for a remote engagement, and fully advise the client of any limitations on the scope of the representation arising from the use of technology.[20] In addition, the duty of supervision continues in any remote representation. This includes supervising subordinates and staff, and implementation of appropriate procedures for remote practice.[21]

The recent ABA opinion on remote work provides important new guidance. Still, lawyers physically present in California must consider California’s restrictions on unauthorized practice, establishing an office where the lawyer is not admitted, and “holding out” through representations to the public. California lawyers physically present in another state must consider both California law and the law of the state in which they are physically present.

Carole Buckner is a member of the California Lawyers Association Legal Ethics Committee. As partner and general counsel for Procopio, Cory, Hargreaves & Savitch, LLP, she advises lawyers and law firms, and serves as an expert witness in matters involving legal ethics and professional responsibility. The views expressed are solely her own.

[1] ABA Formal Op. 495 (Dec. 16, 2020).

[2] The temporary services must be undertaken in association with a lawyer admitted to practice in the jurisdiction and who actively participates in the matter; or, be reasonably related to a pending potential proceeding before a tribunal, if the lawyer reasonably expects to be admitted to appear in the proceeding; or, the services may be reasonably related to an alternative dispute resolution proceeding, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; or the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

[3] ABA Formal Op. 495 (Dec. 16, 2020), at 1.

[4] Id.; Regulation of federal practice is preempted by federal law. Sperry v. Fla. Ex rel. Fla. Bar, 373 U.S. 379 (1963); California has no jurisdiction over federal law practice. Benninghoff v. Sup. Ct., 38 Cal. Rptr 3d 759 (Ct. App. 2006)

[5] Id. at 3.

[6] Id. at 3.

[7] Id. at 1-2.

[8] Fla. Bar Assoc. Standing Committee on the Unlicensed Practice of Law, 2019-4 (Aug. 17, 2020) (out-of-state attorney licensed before the USPTO, and in New York and New Jersey, not licensed in Florida, working remotely from Florida home with law firm’s website listing no physical address for him other than the firm’s New Jersey business address, and letterhead, website and business cards showing contact by phone and fax only at the firm’s New Jersey phone and fax number, not advising on Florida law, and “virtually” present via technology only in New Jersey, with calls to his New Jersey area code routed to his cell phone did not establish a regular presence in Florida for the practice of law and therefore did not engage in the unauthorized practice of law).

[9] COPRAC Formal Op. 2012-184.

[10] CRPC, Rule 5.5(b).

[11] ABA Formal Op. 495 (Dec. 16, 2020), at p. 2.

[12] Id.

[13] Id.

[14] CRPC, rule 5.5 (prohibiting lawyer not admitted to practice in California from holding out to the public or otherwise representing that the lawyer is admitted to practice law in California.

[15] CRPC, rule 7.1.

[16] ABA Formal Op. 495 (Dec. 16, 2020), at p. 2-3.

[17] ABA Formal Op. 495 (Dec. 16, 2020), at p. 2.

[18] CRPC, rule 1.1; COPRAC Formal Op. 2012-184.

[19] CRPC, rule 1.4; COPRAC Formal Op. 2012-184.

[20] COPRAC Formal Op. 2012-184, at p. 6.

[21] CRPC, rules, 5.1, 5.2 and 5.3; COPRAC Formal Op. 2012-184, at p. 7.