April 01, 2021
Ethics Guidance For the New Normal of Attorney Work
As optimism grows for a return to some semblance of normal life, and the potential end of the pandemic may be in sight, California law firms are starting to face questions related to the details of their attorneys’ post-pandemic work life.
Many of the questions related to attorneys working remotely already have come up. And most law firms answered, or should have answered, some of these questions before the pandemic, because attorneys’ working styles already had evolved: attorneys, and their devices, have been mobile for a while.
Other questions are unique to the pandemic, and the hoped-for post-pandemic. Many relate to the nagging reality that state bar admissions are quite individual to each state. That means, of course, that being admitted in one state doesn’t mean you can practice in another, even if it’s nearby. It also means that every state interprets its own rules, leading to a patchwork for what is, and what is not, allowed. Many attorneys who left the daily office last year also left home, moving permanently or temporarily to other states. For the new normal of attorney work life, this system leads to questions that, until recently, have been unanswered.
Into this breach steps the ABA, in a pair of opinions to provide guidance to some of the most important questions for attorney work in the during- and post-pandemic world. California lawyers will know that ABA opinions are persuasive, although not binding, on ethics issues for California. However, the rationale of these opinions, and the practical approach that they outline, point the way toward an updated regulatory framework for the way lawyers work today.ABA Formal Opinion 495, “Lawyers Working Remotely,” provides common-sense answers to some timely questions: What if I am admitted and work in State A, but I live in State B? Does it matter that I don’t have any clients in State B? Or that I don’t advertise my services in State B?
Formal Opinion 495 answers these questions in the context of Model Rule 5.5, which prohibits the unauthorized practice of law (5.5(a)) and prohibits establishing an office or other systematic presence in a jurisdiction in which the lawyer is not licensed (5.5(b).) The Opinion notes that some states, Maine and Utah specifically, already have approved such practice and references the purpose of 5.5, which is to “protect the public from unlicensed and unqualified practitioners of law.” The Opinion resolves the cross-border conundrum, within certain parameters, concluding:
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, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.
Separately, ABA Formal Opinion 498, “Virtual Practice,” identifies the commonly implicated Model Rules related to virtual practice, including (1) competence, diligence, and communication (Model Rules 1.1, 1.3, and 1.4); (2) confidentiality (Model Rule 1.6); and (3) supervision (Model Rules 5.1 and 5.3). The Opinion also inventories some particular issues relevant to virtual practice, primarily related to technological competence, meaning your duty of competence extends to ensuring the technology you use in remote work meets the obligations you have under the Rules. Also noteworthy: on March 22, 2021, the California Supreme Court amended its Rule 1.1 of the Rules of Professional Conduct to include a new comment , stating that competence includes the duty to “keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Taken together, these authorities outline a future of attorney work that is already here but can be properly regulated: attorneys work where they work, and the rules still apply but accommodate flexibility.