The American Bar Association (ABA) recently chimed in and issued an “ethics” opinion for lawyers who are working remotely from home because of the pandemic. The opinion interprets one section of the ABA’s Model Rules for how lawyers should conduct themselves and their business.
Rule 5.5(b)(1) prohibits a lawyer from establishing an office or other “systematic and continuous presence” in a jurisdiction where the lawyer is not licensed to practice law.
A lot of lawyers who practice in NYC live in New Jersey or Connecticut. They are no longer commuting into their offices. Working from home for a period of months they arguably have a “systematic and continuous presence” in a state where they live but where many may not be licensed to practice law.
The ABA’s opinion (Formal Opinion 495) bails out these interstate commuters reasoning that a lawyer does not have a “systematic” presence in a jurisdiction merely by their physical presence in that state. The ABA concludes that “The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law”.
By that the ABA means that it is fine if a lawyer works from home in New Jersey, but is only licensed in New York, provided that they continue to run their practice through their New York office. A lot of NY lawyers have always taken work home across state lines and billed clients for it. So this just reinforces the status quo.
Once the pandemic is over, the ABA presumes that all will return to “normal” and that all lawyers will return to the office. That model was already outdated when I was a young lawyer and became an anachronism with the internet. If the pandemic has taught us anything is that a virtual office works quite well for many people.
Many lawyers handle matrimonial, criminal and probate matters where laws and procedures vary state to state. All of those matters are filed in state courts. Admission to practice before the local courts is essential to their practice.
Many of the hearings now held by those Courts are themselves virtual with everyone assembling on the screen instead of in the Courthouse. An office in proximity to the Courthouse is no longer necessary for many of the lawyers who practice there.
I am already seeing ads for white label online platforms for lawyers that incorporate Zoom style conferencing with note taking, scheduling, and billing and payment options. Going forward, that some lawyers will meet and service clients exclusively online much in the same way that tax preparers do now, should be a foregone conclusion.
Sooner or later the kids will be back at school. It should be a lot easier to be productive from home without their interruptions. Commuting also adds stress to a lawyer’s life that already has way too much stress built in.
The savings of the cost of commuting in time and dollars will be obvious to a lot more lawyers than the ABA thinks. Online conferencing will obviate the need for many lawyers to pay rent for an office as they move their office home.
Forgive me for stating the obvious, but where the ABA sees a lawyer’s “practice” as a street address, I rather see a lawyer’s practice as the tasks he/she performs. And many, if not all, of those tasks can be performed from home or from poolside at a nice hotel on Maui for that matter.
The ABA went further when it wrote: The clear conclusion of Formal Opinion 495 is that the purpose of Model Rule 5.5—protecting the public from unlicensed and unqualified lawyers—is not served by prohibiting lawyers from practicing law in their licensed jurisdictions simply because they are physically located in another jurisdiction where they are in essence “invisible as a lawyer to a local jurisdiction.”
What the ABA and the local lawyers really don’t want is lawyers who are licensed elsewhere poaching local clients. You can hand out your business card, of course, but the address and phone number have to be those of your brick and mortar office located in a jurisdiction where you are licensed to practice.
That made some sense several decades ago, but in the modern internet world many law firms have a national or international practice. Can you really be “invisible as a lawyer in a local jurisdiction” when your firm is buying online advertising that reaches that local jurisdiction and many more?
I had the occasion to move recently and when I took my own license off of the wall, I stopped and read it. It was issued by a Court and signed by a Judge. It granted me the specific authority to “practice law before the Courts of the State of New York.” It did not come with FAQs that asked and answered the question of what constituted the practice of law in the State of New York or elsewhere.
When I was General Counsel of a national real estate firm we retained a big Washington DC law firm that specialized in federal tax matters. The law firm would issue its opinion regarding certain tax matters that might result from specific real estate syndication we were preparing. The opinion would be included in the disclosure documents and reviewed by investors in many states.
The law firm had no lawyers licensed to practice law in each of those states or in California (the location of the headquarters office of their client) for that matter. Its partners were all licensed in DC or Virginia. The law firm itself had clients in all 50 states.
Clients from all over the US seek and retain lawyers who have good reputations. In a great many cases it does not matter whether the lawyer is licensed in the state where the client resides. Experience with local law is not what the client needs. This is especially true with a wide variety of matters where the US government is a primary regulator.
This would include matters involving the laws or regulations governing aviation, broadcasting, immigration, patents and IP, trucking, pharmaceuticals, shipping and ports, banking, securities and capital markets, toxic waste and Tribal lands. This list is far from inclusive.
A lot of the lawyers who specialize in these areas already “practice” across state lines. Local laws and procedures are not relevant to what they do.
There are lawyers currently representing clients in administrative matters before a myriad of government agencies who are not licensed in the state where the client resides or in the state where the matter is being handled. There are arbitration forums that do not require any party’s representatives to be licensed to practice law in the state where the hearing is being held.
There is already a lot of work for lawyers who never “practice before the Courts” of any state. Still, what they do for a living is practice law. Their physical location, as the ABA points out, is “incidental” to their practice. They do not need a brick and mortar office in the state where they are licensed to support their practice. The fact that they are “licensed” in one state or another is largely irrelevant to their practice as is the street address of their practice irrelevant to services they provide.
Post-pandemic I think that the “virtual” practice of law will flourish. Working from home will be just too cost effective for many solo practitioners and small firms. I invite any attorney reading this to do the math and calculate the savings from giving up your office and working from home with a virtual assistant if you need one.
Large firms that adopt a virtual model will be able to affiliate many more specialists if they can add partners and “of counsel” without regard to where they live or are admitted to practice. A large firm could have 50 virtual conference rooms occupied every day without adding or paying for a single square foot of actual space.
I do not expect that the ABA will endorse any of this. It is far too ingrained with the status quo. If thousands of lawyers adopt a virtual office model and are routinely living in another state or joining firms in another state, the ABA may have to re-think its entire view of state-by-state licensing and brick and mortar offices.
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