California
Attorney Ethics Counsel

September 30, 2020

12 Steps to a Healthier Law Practice in 2020: Step 9 – Location Matters

Fall is here, but most of us are still at home … many of us with our kids! After months of sheltering-in-place and social distancing, I think we can all agree that location does matter.

In November 2018, 69 new or amended California Rules of Professional Conduct (“CRPC”) were thrust upon California’s more than 250,000 lawyers. These rules were renumbered and reorganized to align with the American Bar Association’s (“ABA”) Model Rules and replaced the 46 ethics rules that California lawyers had been following for nearly 30 years.  Despite each of us having been responsible for adhering to these rules since the end of 2018, many California lawyers and law firms still do not know, or do not fully appreciate, the significance of the modifications.  Therefore, as we enter into this new decade and the second full year of these rules being in effect, I invite you and your firm to join my 12-step program to a healthier law practice in 2020 and the years to come.

Each month I feature an article on the key ethics rule changes aimed at guiding you and your firm to a healthier law practice by better managing your risks of liability.  You can access each article directly on this blog page or you can subscribe to this blog to ensure that you don’t miss any of the 12-steps.  The steps do not have to be reviewed in order, but you are encouraged to read each step to optimize the value of this program. To date, the following steps have been published:

Step 1 – Take Responsibility;

Step 2 – Treat Others The Way You Want To Be Treated;

Step 3 – Avoid Conflict;

Step 4 – Money Does Not Buy Happiness;

Step 5 – Sharing is Caring;

Step 6 – Advise on the Law

Step 7 – The Practice of Law is Not a Dating Service;

Step 8 – Communication is Key

Please note that the articles on this blog are not legal advice and do not take into account specific facts or circumstances for which a tailored analysis and risk management plan is recommended.

STEP 9 – LOCATION MATTERS

In this time of ever-changing technology and increased mobility, a lawyer’s physical location shouldn’t matter, but it does … at least in California.  The majority of states follow some version of ABA Model Rule 5.5, stating that lawyers admitted in one U.S. jurisdiction cannot provide legal services in another jurisdiction unless it is temporary and under strict conditions. Violators are at risk of discipline and criminal liability. California’s Rule 5.5 is similar. See also Business & Professions Code §§  6125-6133; Cal. Rules of Court, Rules 9.40-9.48; Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court (1998) 17 Cal.4^th 119.  A lawyer cannot establish or maintain “a resident office or other systematic or continuous presence in California for the practice of law” if the lawyer is not authorized to practice here, even if that lawyer is not practicing California law.  CRPC 5.5(b)(1).

One silver-lining of the Covid-19 pandemic is that it has forced the legal profession to acknowledge that change does not equal downfall. Thanks to advances in technology, lawyers around the country are able to competently represent their clients remotely, no matter where a lawyer is physically located. Unfortunately, the rules and laws governing the unauthorized practice of law (“UPL”) and multi-jurisdictional practice (“MJP”) have not kept up with the evolution of affordable technology and lawyer mobility, and, as a result, fail to reflect the realities of providing legal services remotely.  Legal ethicists refer to a lawyer practicing from a state where the lawyer is not licensed as the “butt-in-seat” problem.

Arizona, Minnesota, New Hampshire and North Carolina have rules that allow a lawyer licensed in another jurisdiction to provide legal services in their state on matters exclusively involving the law of the jurisdiction where the lawyer is licensed.  A “butt-in-seat exception,” if you will.  Other jurisdictions have enacted temporary measures since the pandemic hit.  However, it is a well-timed Florida opinion that is generating buzz about this problem.

Florida’s proposed opinion #2019-4 advises that a lawyer who is licensed in one state, works for a law firm in that state, but permanently lives and works from his home in Florida where he is not licensed, has not established an “office” or a “systematic or continuous presence” in Florida for the “practice of law” because neither he nor his firm is holding him out as a Florida lawyer, soliciting Florida clients, or practicing Florida law. Instead, the lawyer is simply using modern technology to remotely practice the law of the state where he is licensed.  UPL rules are meant to protect a state’s consumers from incompetent or unethical lawyers.  The Florida Bar’s Standing Committee on UPL reasons in its opinion that such a lawyer “is not providing legal services to Florida clients”, “no Floridians are being harmed” and, so, “there are no interests of Floridians that need to be protected[.]”  The opinion cites Utah Ethics Advisory Committee Opinion 19-03 (2019), which came to the same conclusion based on similar facts.

Lawyers should be allowed to live or otherwise put their butt in a seat wherever they can competently continue their livelihood of practicing the law of the jurisdiction where they are licensed, federal law or tribal law.  California should embrace the lessons learned from Covid-19 and add a “butt-in-seat” exception to its rules.  To be clear, even with a butt-in-seat exception, lawyers licensed elsewhere would be in violation of California’s UPL laws if they sat in California and practiced California law, butt (pun intended) not if they sat in California and only practiced the law of the state where they are licensed, federal law or tribal law.  To the extent any argument against the butt in seat exception centers on the state’s need to have oversight over the lawyers in the state and/or not wanting to forfeit the money potentially gained from forcing a lawyer to obtain a license in the state, then there is no reason why California could not implement a program similar to that for Foreign Legal Consultants (FLC),  which requires lawyers licensed outside of the United States to apply and pay for the State Bar’s approval to practice in California only the law of the foreign jurisdiction where they are licensed.  Cal. Rules of Court, Rule 9.44. All eyes are on the California Bar’s newly formed Closing The Justice Gap (CTJG) Working Group to see how they will seek to improve our UPL and MJP rules in the coming year.

Please contact author, Kendra Basner, if you have any questions about this article or if you would like guidance as to the application of or compliance with these rules.