The American Bar Association (ABA) has issued formal ethics opinion 495 “Lawyers Working Remotely.” A timely topic in the midst of the pandemic and an opinion that will offer some comfort to those who are currently living and practicing in a jurisdiction where they are not licensed. The digest concludes:

Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states' or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.

It sounds good as far as it goes. But can a lawyer rely on it? The opinion interprets the ABA Model Rules, not the law of any particular jurisdiction, as the opinion carefully points out. While the ABA Model Rules are the model for the ethical rules in every US state now – California, the last holdout, succumbed in November 2018 – every state has enacted its own version, some (like California) with very significant changes indeed.

The opinion bases much of its analysis on the text of Model Rule 5.5(a) and 5.5(b):

(a) 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. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

More good news is that California's version of this part of 5.5 is virtually identical:

(a) A lawyer admitted to practice law in California shall not: (1) practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction; or (2) knowingly assist a person in the unauthorized practice of law in that jurisdiction. (b) A lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.

The only significant change is the addition of the word “a resident office” to the prohibition on lawyers not admitted in California. And it is of significant interest because there are many lawyers living in California that are not admitted here but carrying on a “virtual” law practice for clients in other states where they are admitted. This was the case even before the pandemic.

Does “resident office” include the spare bedroom that you have outfitted as your home office? While it does not address the California rule, the Formal Opinion 495 is helpful (but not dispositive) in answering that question:

The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed. The Committee's opinion is that, in the absence of a local jurisdiction's finding that the activity constitutes the unauthorized practice of law, 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.

The opinion is consistent with the case law, which seems to emphasize a multi-factor test, with the location of the client as one of the most important factors, in deciding “where” the practice of law is taking place; see Barker, William T., Extrajurisdictional Practice by Lawyers. Available at SSRN: https://ssrn.com/abstract=283269.

There is no California authority finding that such “invisible” practice by “extrajurisdictional” lawyers not admitted in California violates Business and Professions Code section 6125 and 6126, where the prohibitions on unauthorized practice of law principally reside. Perhaps that is because it is invisible. But the deeper explanation is such practice does not tread on the fundamental nature of these prohibitions as protectionism – a way to keep out of state lawyers from poaching California clients. This protectionism has always been couched as necessary to protect the public from unqualified lawyers and the ABA opinion dutifully recites the shibboleth, which grows more hollow as technology conquers geography.

In the meantime, lawyers not admitted to practice in California are probably safe to virtually practice for clients in their licensed jurisdictions, so long as they remain “invisible”.