Delaware Lawyers: Remote Work Okay If State of Residence Agrees
Last month, the Delaware State Bar Association Committee on Professional Ethics released Formal Opinion 2021-1, addressing whether Delaware attorneys may practice Delaware law while working remotely from another jurisdiction. The Committee held that Delaware licensed lawyers are permitted to practice Delaware law outside the state, so long as the local jurisdiction where the attorney is practicing does not have a statute, rule, case law, or opinion that prohibits such conduct.
The Opinion, which was published on July 9, allows remote Delaware licensed lawyers to practice outside Delaware “provided that such lawyers may not hold themselves out as being licensed to practice in the local jurisdiction and may not advertise or otherwise hold themselves out as having an office in the local jurisdiction, or provide or offer to provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.”
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Delaware’s Opinion is in line with the ABA’s guidance provided in Formal Opinion 495, Lawyer’s Working Remotely, which permits attorneys to work remotely, with certain conditions. Opinion 495 analyzed the application of Model Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law.
The Opinion states, “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.”
In its reasoning for adopting the ABA’s analysis, the Delaware Committee stated that the purpose of Delaware Lawyers’ Rule of Professional Conduct 5.5 “is not served by barring Delaware-licensed lawyers from practicing the law of Delaware, for clients with matters in Delaware, just because such lawyers are physically located in a local jurisdiction where they are not licensed[.]” In support thereof, the Opinion further cited to COVID-19 and the emergency restrictions that have been imposed by the Governor of the State of Delaware and the Chief Justice of the Delaware Supreme Court in light of same.
The opinion notes that it does not address whether lawyers who are not licensed in Delaware may practice remotely from Delaware into the state in which they are licensed, nor does it advise on lawyers in other states representing clients located in Delaware.
Delaware is one of several states to issue remote working opinions, with various limitations, since the start of the COVID-19 pandemic, including California, Florida, and, in a joint opinion, Pennsylvania and Philadelphia. As the United States continues to see COVID numbers rise dramatically in parts of the country, it will be no surprise for more states to follow in their footsteps.
