While the four-page opinion did not specifically mention the rapid shift to remote work triggered by the coronavirus pandemic, it noted that technology has made it possible for lawyers to provide legal services to people in a state they are licensed in while being physically present in a jurisdiction in which they are not licensed. The ABA's Standing Committee on Ethics and Professional Responsibility wrote that placing barriers on the practice would not serve the public.
"The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law," the committee wrote. "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 ABA opinion noted that lawyers could still be barred from such activity if the local jurisdiction they were conducting remote work in found that their behavior amounted to an unauthorized practice of law. It also added that lawyers would need to abide by a list of "specific parameters," including not establishing an office or other systematic presence in the local jurisdiction in which they're operating.
Attorneys are also prohibited from advertising their availability to perform services in that jurisdiction or provide assistance for matters pertaining to that local jurisdiction, unless they are otherwise authorized. Advertising their local contact information on websites, letterheads or business cards would be examples of improper conduct, the opinion said.
The lawyer's physical presence in the local jurisdiction must be "incidental; it is not for the practice of law," the committee said.
Much of the U.S. economy transitioned to remote work environments in the spring in wake of stay-at-home orders caused by the COVID-19 outbreak. Some leaders in BigLaw have said they expect elements of the flexible work arrangements to remain in place long after the pandemic, a prediction that has prompted talks of firms downsizing their office space.
"I don't think we'll go back completely to the way things were," Sonya Olds Som, a partner at executive search firm Heidrick & Struggles International Inc., previously told Law360. "I don't think we'll go back to a time where everybody goes into the office every day."
--Additional reporting by Michele Gorman and Brandon Lowrey. Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
