The Covid-19 pandemic is prompting calls to abolish a requirement that attorneys only practice in jurisdictions where they are admitted to the bar given the rise of remote work and other changes in professional life due to the coronavirus.
The pandemic has “forced the legal profession to acknowledge that legal service can be ethically provided to clients no matter the lawyer’s physical location,” said Kendra L. Basner, a partner with O’Rielly & Roche in San Francisco.
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. A pending decision in a Florida case could help advance changes in there. In addition, the American Bar Association’s ethics committee “will likely be taking a closer look at this issue,” newly installed ABA President Lee Refo told Bloomberg Law in an interview.
Nevertheless, even a pandemic and the relative ease with which technology allows attorneys to work remotely may not be enough to overcome the legal profession’s deep-seated protectionism designed to prevent out-of-state lawyers from setting up shop with ease.
ABA Model Rule 5.5 is 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.
Eric Cooperstein, whose Minneapolis practice focuses on legal ethics, said the stated reason for the rule was to protect consumers by ensuring that lawyers in their state are competent in the local laws. But the unstated reason, he said, is protectionism. States want to guard their lawyers from outside competition.
The rule’s origin reflects a time when lawyers weren’t as mobile and technology didn’t allow for efficient distance work, Basner said.
Since the pandemic hit the U.S. earlier this year, the legal sector has undergone profound changes as law offices closed and attorneys set up remotely while relying on high-speed internet, video and audio connections to maintain contact with clients, courts, and adversaries.
The new reality tests ethical rules limiting the ability to live or conduct business in one place and work in another. This was a common scenario for many businesses before Covid, but not for the guarded legal sector.
Everyone understands this is an extraordinary situation, said Jan L. Jacobowitz, director of the University of Miami School of Law’s Professional Responsibility & Ethics Program. She is also president of the Association of Professional Responsibility Lawyers.
As long as lawyers are practicing in “good faith,” she said, “no one’s interested in spending the time and expense in pursing” disciplinary measures. There are no known disciplinary actions against lawyers who are working at home in a state where they’re not admitted to that bar due to the pandemic.
Minnesota, North Carolina, Arizona, and New Hampshire already allow lawyers to practice there if they’re licensed elsewhere as long that they disclose that they’re not licensed to practice in that state. D.C.'s Committee on the Unauthorized Practice of Law decided in March to relax its rules during the pandemic. But a new opinion indicates Florida may be willing to make the change permanent.
A proposed formal advisory opinion by the Florida Bar’s Standing Committee on the Unlicensed Practice of Law says that a lawyer living and working there for a New Jersey law firm with no offices in Florida isn’t engaged in the unauthorized practice of law if solely practicing federal intellectual property matters—his specialty— and not Florida law.
The proposed opinion will soon be filed with the Supreme Court of Florida for final court action. The court can approve, modify, or disapprove the proposed advisory opinion. The court’s opinion will have the force and effect of an order of the court.
The opinion said that the pandemic played a role in the decision. It’s unclear if the Florida case will have a broader impact but some lawyers are cautiously optimistic, especially given the state’s protectionist reputation.
The Florida opinion cites to a May 2019 Utah ethics ruling advising that lawyers licensed in another state who establish a home in Utah and practice law for clients from the state where the attorney is licensed isn’t violating practice rules as long as the lawyer doesn’t solicit Utah clients or establish an office there.
Thomas E. Spahn, a litigator with McGuireWoods in Tysons Corner, Va., said Florida’s acknowledgment of the Utah opinion “nudges the multijurisdictional practice debate in the right direction.”
Let Lawyers Choose
Lawyers should be allowed to choose to live in another state “if they can continue to ethically practice the law of the jurisdiction” where they’re licensed, Basner said.
So long as lawyers are upfront with clients, don’t hold themselves out as being able to practice where they’re not licensed, and reasonably believe they can competently advise clients on the laws of the jurisdictions where they’re licensed, the rules should allow it, she said.
Such a change could yield benefits long after the pandemic, allowing lawyers to relocate because of a change in life circumstances, like a sick parent or a spouse’s job, Basner said.
And if clients really want their lawyers to do the work, regardless of where they are, “who cares?” said Cooperstein.
“It’s all about turf protection,” said Spahn, noting that he supports change but isn’t optimistic it will happen because it may not be a top agenda item at state bars.
Cooperstein also questioned what will happen post-pandemic.
Some protectionist state bars aren’t interested in changing the rule, he said. He advised any lawyers who plan to continue working from home to consider waiving into the bar where they live, if possible.
“Spending too long under the radar in that state might bite you back,” he said.