The Remote Work Discussion Continues
The Bar Association of San Francisco recently released Ethics Opinion 2021-1, addressing whether lawyers who practice law remotely from another jurisdiction where they are not licensed are engaging in the unauthorized practice of law. The Opinion comes on the heels of the State Bar of California Standing Committee on Professional Responsibility and Conduct’s Interim Formal Opinion No. 20-0004 regarding many of the issues arising with remote work.
Opinion 2021-1 addressed two different scenarios of remote work: first, lawyers licensed to practice law outside of California and work remotely from California, and second, California-licensed lawyers who work remotely outside of the state.
Regarding non-California licensed lawyers, Scenario 1’s answer held that remote work was permissible so long as those lawyers did not “advertise or otherwise hold himself or herself out as a licensed California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in California, and does not represent a California person or entity[.]”
The Opinion clarified what is permissible regarding non-California licensed lawyers’ representation of California residents, stating that whether a violation has occurred “will depend on the nature of the representation, whether the representation complies with the regulations of the jurisdiction where the lawyer is licensed, the role of other California lawyers in the representation, and other factors relevant to whether the California client is protected consistent with the purpose of [California’s Unauthorized Practice of Law] rules and laws.”
Scenario 2, regarding California-licensed lawyers who work remotely, held that whether or not remote work is permissible “depends on the law of the jurisdiction where Lawyer is residing.” Citing CRPC Rule 5.5(a), which deals with the unauthorized practice of law and multijurisdictional practice of law, the Opinion requires that a lawyer must analyze the law of the jurisdiction where he or she is remotely practicing from to ensure adherence to the rules and laws of that jurisdiction, in addition to ensuring adherence to California’s rules and laws.
In the wake of the COVID-19 pandemic, San Francisco’s stance on remote work is not unique and follows similar reasoning to that employed by the American Bar Association and several states’ bar associations, including those of Maine, Utah, Pennsylvania, District of Columbia, Delaware and Florida. As the practice of law continues to evolve, and the Delta variant of COVID-19 continues to surge through the United States, other state bar associations may continue to follow in their footsteps.
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