Management Assistance Program

The Ethics of Lawyers Working Remotely Addressed by New ABA Formal Opinion (December 16, 2020)

Working from home was a big pandemic-related development this year. But the American Bar Association has previously noted that: “Lawyers who continue to provide legal services in the area affected by a disaster have the same ethical obligations to their clients as before the disaster, although they may be able to provide advice outside their normal area of expertise.” ABA Formal Opinion 482 (Although I do note that language was drafted pre-pandemic and assumed an area or region would be impacted rather than the entire planet.)

This week the ABA issued Formal Opinion 495 on Lawyers Working Remotely. However, while the opinion addressed an issue that had been vexing legal ethics experts, it did not cover security, confidentiality or many other challenges for lawyers and law firm staff when working from home. It did, however, address the issue of whether working for your clients on matters related to your state could be the unauthorized practice of law if you happen to be traveling outside of your state. (I must admit when I first heard this discussion, I imagined the law school hypothetical of a lawyer flying cross-country and corresponding with clients over the airline WiFi. Was there exposure to every state flown over while typing or was it only the states when you hit Send?)

The opinion’s conclusion:

The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. 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 Committee’s opinion is that, in the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction (additional caveats omitted)

Some states do have a more restrictive view, so if you are planning an extended trip to a particular jurisdiction you might do some quick research.