ABA Formal Opinion OKs Lawyers Who Sit in One Jurisdiction But Are Licensed in Another
The American Bar Association's (ABA) Formal Ethics Opinion 495 confirms what many have said is the law under ABA Model Rule 5.5 for a while now: Lawyers can sit in a jurisdiction in which they are not licensed so long as they are licensed in a U.S. jurisdiction and are "invisible" as a lawyer where they sit. Still, this confirmation will come as welcome news to many who have either been forced or chosen to relocate outside of their licensed jurisdiction due to the COVID-19 pandemic. The Formal Opinion does caveat that it does not apply to those jurisdictions that have already affirmatively barred such "invisible lawyering," though it does not identify any such jurisdiction.
Analysis of Model Rule 5.5
The opinion, issued on Dec. 16, 2020, addresses each subsection of Model Rule 5.5 in turn and comes to the following ultimate conclusion:
a lawyer may practice the law authorized by the lawyer's licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer's presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.
Beginning with ABA Model Rule 5.5(a), the subsection prohibits lawyers from engaging in the unauthorized practice of law: "A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so" unless authorized by the rules or law to do so. The opinion observes, however, that a local jurisdiction's main interest is "in ensuring lawyers practicing in its jurisdiction are competent to do so."
Turning to Model Rule 5.5(b)(1), the rule prohibits a lawyer from "establish[ing] an office or other systematic and continuous presence in [the] jurisdiction [in which the lawyer is not licensed] for the practice of law." The opinion analyzes the plain meaning of "establish" and concludes that no office or presence is established if the lawyer's presence is incidental rather than for the practice of law, and in particular, the lawyer is not holding herself out to the public or otherwise publicizing the local presence via a website, business card, letterhead, etc.
Subparagraph (b)(2) prohibits a lawyer from "hold[ing] out to the public or otherwise represent[ing] that the lawyer is admitted to practice law in [the] jurisdiction" in which the lawyer is not admitted to practice. A lawyer can steer clear of violating this subsection with the same approach as for subsection (b)(1): "If the lawyer's website, letterhead, business cards, advertising, and the like clearly indicate the lawyer's jurisdictional limitations, do not provide an address in the local jurisdiction, and do not offer to provide legal services in the local jurisdiction, the lawyer has not 'held out' as prohibited by the rule." This approach is consistent with Utah and Maine ethics opinions, which have also addressed the issue. Maine Ethics Opinion 189 (2005); Utah Ethics Opinion 19-03 (2019).
Finally, Model Rule 5.5(c)(4) provides that lawyers admitted to practice in another U.S. jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in the local jurisdiction that arise out of or reasonably relate to the lawyer's practice in a jurisdiction where the lawyer is admitted to practice.
The ABA's conclusions are consistent with a recent advisory opinion issued by The Florida Bar's Standing Committee on the Unauthorized Practice of Law, which concluded that a lawyer licensed in New Jersey could live and practice law in Florida without violating RPC 4-5.5 because his presence for purposes of practicing law was in New Jersey and would in no way involve Florida clients, cases, parties, courts, etc. FAO #2019-4, Out-Of-State Attorney Working Remotely from Florida Home (Aug. 17, 2020).1
Conclusion and Takeaways
Lawyers who suddenly found themselves working from a new jurisdiction in 2020 can generally cross "take the ____ bar" off their list for 2021 thanks to ABA Formal Opinion 495. The ABA has confirmed that unless a particular jurisdiction has expressly stated otherwise, lawyers who are invisible to a local jurisdiction and remain licensed elsewhere in the U.S. can continue to work remotely without violating unauthorized practice of law rules that are based on Model Rule 5.5.
1 The standing committee concluded based on the following that the petitioner would have no Florida office and no Florida presence:
While working remotely from his Florida home, he will have no public presence or profile as an attorney in Florida. Neither he nor his firm will represent to anyone that he is a Florida attorney. Neither he nor his firm will advertise or otherwise inform the public of his remote work presence in Florida. The firm's letterhead and website, and his business cards will list no physical address for him other than the firm's business address in New Jersey and will identify him as "Of Counsel – Licensed only in NY, NJ and the USPTO." The letterhead, website, and business cards will show that he can be contacted by phone or fax only at the firm's New Jersey phone and fax number. His professional email address will be the firm's domain. His work at the firm will be limited to advice and counsel on federal IP rights issues in which no Florida law is implicated, such as questions of patent infringement and patent invalidity. He will not work on any issues that involve Florida courts or Florida property, and he will not give advice on Florida law. …
The facts raised in Petitioner's request, quite simply, do not implicate the unlicensed practice of law in Florida. Petitioner is not practicing Florida law or providing legal services for Florida residents. Nor is he or his law firm holding out to the public as having a Florida presence. As Petitioner testified, "we ... tr[ied] to make sure that no Florida citizens, no Florida businesses, certainly not the Florida courts, would have any exposure to me or ... the work I was doing." All indicia point to Petitioner's practice of law as being in New Jersey, not in Florida.
FAO #2019-4, Out-Of-State Attorney Working Remotely from Florida Home at p. 2-6 (Aug. 17, 2020) (footnotes and citations omitted).
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