New Jersey joins other jurisdictions in providing guidance for lawyers working remotely, while Ohio implements 5.5 Rule Amendment
As we continue to see the pandemic’s lasting effects on the practice of law, more states provide guidance on how to navigate the new era of practicing law remotely. Next up: New Jersey and Ohio.
Although New Jersey issued its guidance in the form of a non-binding advisory opinion, as has been the case with other jurisdictions such as, Florida, San Francisco, and Delaware, it is important to note that Ohio went a step further and amended its rule regarding the unlicensed practice of law (“UPL”).
New Jersey
Are non-New Jersey licensed lawyers who physically practice out-of-state law from their New Jersey homes engaged in UPL? The answer is no, according to a recent joint opinion issued by The Committee on the Unauthorized Practice of Law and Advisory Committee on Professional Ethics.
In New Jersey, Court Rule 1:21-1(a) governs UPL, which states that “no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State” (emphasis added). Thus, non-New Jersey licensed lawyers may not maintain a “continuous and systematic presence” in the state of New Jersey for the practice of law.
Although Court Rule 1:21-1(a) refers to the practice of law “in” New Jersey, the opinion clarified that the analysis under this rule hinges on the following two inquiries, rather than the mere physical location of the lawyer in question.
- Is the lawyer practicing New Jersey law? or
- Does the lawyer maintain a “continuous and systematic presence” in New Jersey for the practice of law?
Because the inquiring lawyers were not practicing New Jersey law, but merely working remotely from their New Jersey homes, the opinion focused on providing guidance on the second question. The opinion explained that non-New Jersey licensed lawyers may practice out-of-state law from New Jersey if they do not maintain a “continuous and systematic presence” in New Jersey “by practicing law from a New Jersey office or otherwise holding themselves out as being available for the practice of law in New Jersey.”
Specifically, a “continuous and systematic presence” in New Jersey requires “an outward manifestation of physical presence, as a lawyer, in New Jersey (emphasis added)” In line with ABA Formal Opinion 495, the opinion concluded that “actions that merely manifest presence in New Jersey in the capacity of a private citizen or resident, and not as a lawyer, do not raise such concerns (emphasis added).”
However, the opinion highlighted specific examples of outward manifestations of physical presence that would raise concerns, which include:
- practicing from a law office located in New Jersey,
- any advertisement or similar communication stating that the non-New Jersey licensed lawyer engages in a legal practice in New Jersey,
- any advertisement or similar communication referring to a location in New Jersey for the purpose of meeting with clients or potential clients,
- any advertisement or similar communication stating that mail or deliveries to the lawyer should be directed to a New Jersey location,
- otherwise holding oneself out as available to practice law in New Jersey.
Ultimately, non-New Jersey licensed lawyers associated with out-of-state firms or companies, who practice non-New Jersey law remotely from their homes in New Jersey are not engaged in UPL, as long as they do not exhibit such outward physical manifestations of presence.
Ohio
Similar to New Jersey’s concern regarding outward physical manifestations of presence, Ohio amended Ohio Rule of Professional Conduct 5.5 regarding UPL to reflect these limitations while also allowing non-Ohio licensed lawyers practicing out-of-state law remotely in Ohio flexibility and confidence.
The amended rule, provides that non-Ohio licensed lawyers may establish “an office or other systematic and continuous presence” in Ohio if the lawyers are providing services that are authorized by the jurisdiction in which the lawyer is licensed. However, the amendment includes the following limitations, which provide that the lawyer may not:
- solicit business, accept clients for representation within Ohio or appear before Ohio tribunals except as otherwise authorized by rule or law,
- state, imply, or hold themselves out as an Ohio lawyer or as being admitted to practice law in Ohio,
- violate the provisions of Ohio’s rules regarding fee sharing with a nonlawyer and advertising.
Furthermore, the amended rule states that lawyers who practice remotely from Ohio must indicate their “jurisdictional limitations” on publicly available firm materials. In doing so, the lawyer must state that he or she is not admitted to practice law in Ohio.
By making these changes, Ohio codified what New Jersey and other jurisdictions have already stated in their ethics opinions: physical location is no longer a relevant consideration in determining whether lawyers can competently represent clients in their licensed jurisdictions.
