If your firm is like most law firms, some or all members of your firm’s workforce have been working remotely since the onset of the pandemic. In many cases, your firm’s employees may have chosen to stay close to home (and the office) during quarantine periods, while others chose to move to more remote locations for varying reasons.
If you’re one of the lawyers who chose the more remote option, your choice of location may well have unknowingly triggered ethical issues. For example, if you’re working for a prolonged period of time from a location in another state in which you’re not licensed, then by doing so you may be engaging in the unauthorized practice of law.
But, just as the pandemic has drastically affected the ways in which lawyers get their work done, so too has it had an effect on the regulatory landscape under which lawyers practice. This phenomenon is readily apparent when it comes to the ethics of remote working, as evidenced by two recent ethics opinions, one of which I’ll cover in today’s column.
This opinion was issued on March 23, 2020, by the District of Columbia Court of Appeals in direct response to the issues presented by lawyers working remotely during the pandemic. At issue in Opinion 24-20 (online: https://www.dccourts.gov/sites/default/files/2020-03/CUPL-Opinion-24-20.pdf) was whether an attorney who is not a member of the District of Columbia Bar may nevertheless practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13).
In reaching its determination, the Chair of Committee on the Unauthorized Practice of Law explained that pursuant to Rule 49(a) of the Rules of the District of Columbia Court of Appeals, lawyers generally may not “engage in the practice of law in the District of Columbia … unless enrolled as an active member of the D.C. Bar.”
Next, the committee noted that there was an exception to that rule that allowed attorneys not admitted to the D.C. Bar to practice law in D.C. under certain circumstances. Namely, the rule provides an exception “for ‘incidental and temporary practice’… if the person is authorized to practice law and in good standing in another state or territory or authorized to practice law in a foreign country, is not disbarred or suspended for disciplinary reasons, and has not resigned with charges pending in any jurisdiction or court.”
‘Incidental and temporary’
The committee then reviewed the commentary to the rule for additional insight. Notably the commentary explained that the “incidental and temporary practice” exception was intended to apply “where an attorney with a principal office outside the District of Columbia is incidentally and temporarily required to come into the District of Columbia to provide legal services to a client.”
Finally, the committee turned to the likely factual scenario presented by lawyers working from D.C. during the pandemic and concluded that their remote work fell within the exception.
Specifically the committee determined that lawyers who are not licensed in D.C. “may practice law from the attorney’s residence in the District of Columbia under the ‘incidental and temporary practice’ exception of Rule 49(c)(13) if 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.”
The outcome of the opinion is not surprising given the unusual and unpredictable situation that we all find ourselves in. Of import is that is just one more example of how COVID-19 has affected — and continues to change — our profession.
Nicole Black is a Rochester, New York, attorney, author, journalist, and the legal technology evangelist at MyCase legal practice management software. She is the author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She can be contacted at firstname.lastname@example.org.