Is Your Remote Legal Work the Unauthorized Practice of Law?

Since the pandemic, business has seen a significant rise in remote work and work from home. This is no less the case with the legal profession and law firms, with many downsizing their offices as more and more attorneys and staff are in their home offices.

But where is home? Is it in the same state or a different one as the home office(s)? Do you, for example, have lawyers living in one state and working for a firm in another? In my state of New Jersey, for example, there are people working for Philadelphia or New York firms, but work out of their New Jersey home.

This kind of arrangement can lead to trouble, depending on how that state’s ethics rules define “the practice of law.” In the above example, does New Jersey allow the practice of New Your or Pennsylvania law within it’s borders?

This can also be an issue for more temporary situations like a vacation. As solo or small firm attorneys, we are never truly on vacation. Many of us, including me, take a laptop with us. But can we do work from the state we’re in on vacation?

Whether Remote Work Constitutes the Unauthorized Practice of Law

This is the key question. In an excellent article on this topic by the law firm Hinshaw & Culbertson, LLC, they refer to ABA Model Rule 5.5, which “sets forth the rules to follow for a lawyer to practice remotely ‘on a temporary basis’ in a jurisdiction where he or she is not licensed, provided that the legal services:

    1. are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
    2. are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
    3. are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
    4. are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

There is also ABA Formal Opinion 495, which concluded that lawyers do not violate Model Rule 5.5 by “remotely practice[ing] the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted,” so long as (1) they do not hold themselves out as being licensed to practice in the local jurisdiction and (2) the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law.

But as we all know, each state has their own rules of professional conduct, and they can vary significantly from the ABA model rules. For that reason, states can vary on whether the allow it or not.

States That Allow It

Fortunately, there are some states that specifically allow remote practice. They have amended their rules on the unauthorized practice of law (UPL) to allow this practice. They are:

    • Connecticut
    • New York
    • Hawaii
    • South Carolina
    • California
    • Michigan
    • Utah
    • Virginia
    • Wisconsin
    • New Jersey
    • Delaware
    • Illinois
    • Pennsylvania

States That Don’t

Unfortunately, there are also states that do not allow it, such as:

    • Texas
    • Alabama
    • Colorado
    • Nevada
    • Missouri

States That Implicitly Allow It

Finally, there are those state’s rules that do not expressly use the term “remote practice,” but appear to allow it implicitly. They modeled their language after Model Rule 5.5, and although the wording is not the same, the substance is. Those states are:

    • Arizona
    • Minnesota
    • North Carolina
    • Rhode Island
    • Tennessee
    • New Hampshire
    • Ohio
    • New Mexico
    • Maryland
    • Indiana
    • South Dakota

What Do You Need to Do

Ultimately, it’s your license, so you should read the ethics rules of your state carefully, along with any opinions issued by them, to be sure. But from this it would appear that in the hypothetical I set forth at the beginning, the New Jersey resident may practice New York, Pennsylvania, and Delaware law in his or her home, assuming he/she is licensed in those states.

Also bear in mind that the landscape is changing as more states are looking at their rules with a more practical eye post-pandemic and with the technology that now exists to practice law remotely. After all, UPL laws exist to ensure that the public is hiring a lawyer properly licensed to practice the law of that state, and not where he or she chooses to practice it.

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Steve Richardson

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