PROFESSIONALISM CORNER
NAVIGATING UNAUTHORIZED PRACTICE OF LAW RULES WHILE WORKING REMOTELY
CHRISTINE GARDNER
While a return to the office ( and to normalcy ) may seem to be on the foreseeable horizon , many attorneys are continuing to work remotely for the time being . Some of these attorneys are not only working outside of their regular office , they are also working outside of their admitted jurisdiction , in vacation homes or family homes across the country . What they may not know is that this can raise concerns of unauthorized practice of law . While there has been some movement in Florida to adjust to the realities of the current remote-work environment , many uncertainties remain .
ABA Model Rule of Professional Conduct (“ MPC ”) 5.5 prohibits lawyers from practicing in jurisdictions in which they are not admitted . One significant exception to this rule is for services provided on a temporary basis that are “ reasonably related to the lawyer ’ s practice ” in their admitted jurisdiction .
See MPC 5.5 ( c ). While this may seem straightforward , the contours of this rule are nuanced . Not only is there no clear standard given for what delineates a “ temporary ,” as opposed to a “ continuous ,” presence , this rule was adopted pre-COVID , and as such , does not provide specific guidance for our current times .
Case law predating the pandemic adds to the confusion . For example , in Gould v . Florida
Bar , 259 Fed . Appx . 208 ( 11th Cir . 2007 ), the Eleventh Circuit affirmed a finding that a New York attorney who set up an office in Florida to continue his New York practice did not fall within the “ temporary practice exception ” by returning to his New York office at least 90 days per year .
In contrast , the Florida Bar Standing Committee on Unauthorized Practice of Law recently issued a helpful proposed advisory opinion that addresses attorneys working full time outside of their admitted jurisdiction . In that case , the petitioner moved to Florida permanently but was not admitted to the Florida Bar and had no plans to seek admittance . Although the attorney worked from a home office in Florida , he did not solicit or work with any Florida clients , did not advertise his location in Florida , all materials from his firm identified him as licensed only within his admitted jurisdiction , and all contact information was associated with his firm ’ s location within that jurisdiction . The Committee did not consider this to establish a continuous practice of law in Florida . The Florida Bar Standing Committee on the Unlicensed Practice of Law , FAO # 2019-4 .
The Bar filed the proposed advisory opinion with the Florida Supreme Court on August 17 , 2020 , where it remains pending . The Florida Bar Re : Advisory Opinion – Out-of-State Attorney Working Remotely from Florida
Home , Case No . SC20-1220 .
The Committee ’ s opinion is one of several recent ethics opinions that take a narrower view of unauthorized practice of law in the face of COVID and rapidly improving technology . For example , earlier this year , the D . C . Court of Appeals analyzed the implications of working from home on the unauthorized practice of law rules during the pandemic . The court concluded that the “ temporary practice ” exception permits an attorney not licensed in D . C . to practice law from their residence located in D . C ., as long as the attorney “( 1 ) is practicing from home due to the COVID-19 pandemic ; ( 2 ) maintains a law office in a jurisdiction where the attorney is admitted to practice ; ( 3 ) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia , and ( 4 ) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia .” See Teleworking from Home and the COVID-19
Pandemic , D . C . Court of Appeals Committee on Unauthorized Practice of Law Opinion 24- 20 ( March 23 , 2020 ).
Given the lack of uniform guidance on this issue , practitioners must recognize that practicing remotely across state lines still poses significant risks . Recent guidance , however , suggests that attorneys should , at a minimum , avoid the appearance of establishing a practice in the remote-work jurisdiction by maintaining their contact information within the admitted jurisdiction . This might include , for example , forwarding office calls to a cell phone rather than providing a new number , continuing to use firm mailing and email addresses for all business correspondence , and avoiding
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in-person meetings with clients in the remote-work jurisdiction . Nonetheless , as states issue opinions reflecting the current environment , attorneys should continue to look to the rules of their admitted and remotework jurisdictions for guidance .
Christine Gardner is an associate with Akerman LLP in West Palm Beach . She focuses her practice on appellate matters , legal ethics and professional liability , and business litigation .
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