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ABA Mulls Changes to Unauthorized Practice, Remote Work Rule

Oct. 20, 2021, 11:22 PM

The American Bar Association is taking the first steps toward a possible amendment to its unauthorized practice rule, a step that could open up remote work for lawyers on a national scale and improve access to justice efforts.

The ABA Standing Committee on Ethics and Professional Responsibility “is mulling ideas for change and will then seek input from lawyers about what changes they might want to see in Rule 5.5,” said attorney Lynda Shely on Wednesday in an email.

Shely, who advises clients on legal ethics from her firm in Scottsdale, Ariz., and chairs the ABA’s ethics committee, mentioned the development while moderating a panel on unauthorized practice.

“At this time, the Standing Committee is not making any recommendations for changes—we hope to offer CLE programs and meetings to first gather information,” Shely said.

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.

In an opinion last December, the ABA eased the rule, saying that lawyers can work remotely in jurisdictions where they’re not licensed as long as they only engage in law they’re authorized to practice

Several states, including New Jersey earlier this month, have relaxed their remote practice rules since the start of the pandemic, when many lawyers were forced to work at home in states where they weren’t licensed. Their guidance mirrors the ABA’s newest interpretation of the rule

But the debate over the rule began before the pandemic, with critics saying it restricts access to justice.

Wednesday’s panel debated whether competence, rather than geography, should determine where a lawyer can practice.

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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