Attorneys working remotely and within the rules

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COVID-19 has had far-reaching effects on both society as a whole and on the practice of law. Remote work has become commonplace due to the long-term impact of the pandemic and, as a result, the rules and regulations that limit lawyers’ ability to practice law from any location have been under renewed focus, with many jurisdictions issuing ethics opinions and/or amending regulations in an effort to ensure that lawyers remotely are able to do so ethically.

Since the onset of the pandemic, I’ve covered many of the ethics opinions and rule changes as they’ve occurred, whether they relate to technology and cybersecurity issues or the ability to practice law from jurisdictions in which lawyers are not licensed.

A number of New York State Bar Association Committees and the Council on the Profession issued a report in November 2021 that proposed amending Part 523 by adding a new section that confirms that lawyers who practice law outside New York state “do not engage in the practice of law in this State solely by virtue of physically working remotely from their homes in this State.”

Since I last wrote about it, the proposal was submitted for consideration by the New York State Bar Association House of Delegates last month at the Bar Association’s Annual Meeting and was approved on Jan. 22.

This determination is one of many that have occurred in recent months that have relaxed or repealed the prohibitive regulations that have restricted the ability of lawyers to work remotely, especially as it relates to the unauthorized practice of law. Below are a few notable examples.

In September 2021, Ohio amended its unauthorized practice of law provision, Rule 5.5, and it now permits lawyers who are not licensed in Ohio to establish an office or other continuous presence in Ohio in order to provide legal services in another jurisdiction in which they are licensed as long as they make public their jurisdictional limitations in relation to Ohio.

They must also not “solicit business, accept clients for representation within Ohio or appear before Ohio tribunals except as otherwise authorized by rule or law; state, imply, or hold themselves out as an Ohio lawyer or as being admitted to practice law in Ohio; and violate the provisions of Ohio’s rules regarding fee sharing with a nonlawyer and advertising.”

This issue was also addressed in Wisconsin Formal Ethics Opinion EF-21-02, an opinion I previously wrote about in relation to the cybersecurity recommendations found therein. This opinion also addressed the unauthorized practice of law issues triggered by remote work, and the Ethics Committee determined that pursuant to the Wisconsin Rule, an attorney not licensed in Wisconsin may work within the state and handle legal matters in other jurisdictions where the attorney is licensed but is prohibited from establishing “a public office in Wisconsin or solicit(ing) Wisconsin business unless otherwise authorized by law.”

Finally, another opinion that was handed down in late 2021 is the Virginia State Bar’s proposed Legal Ethics Opinion 1896. Like the others, this opinion also addressed the unauthorized practice of law issues that are triggered when an out-of-state lawyer works remotely from Virginia while handling matters in another jurisdiction.

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” and co-authors “Social Media for Lawyers: The Next Frontier.” She can be contacted at [email protected].