By Ellen C. Brotman and Lynn Marietta Nichols
Decades ago when the Rules of Professional Conduct were codified in Pennsylvania, we all went to offices in the jurisdiction where we served our clients. We were listed in the Yellow Pages; we read actual law books and we had paper files. The phones stopped ringing after 5 p.m. and we could get our work done. We interpreted Pennsylvania law in Pennsylvania matters and we did not worry about virtual offices or multi-jurisdictional practice or globalization.
Things have changed. Technology permeates our lives and is both a boon and a bane. It frees us to work anywhere, anytime—leading us to work everywhere, all the time. We go to the beach and bring our laptops; we go on vacation and carry our practices in our phones. While we may still be representing Pennsylvania clients in Pennsylvania matters, does it matter if we are not doing it in Pennsylvania? The use of remote work by attorneys has taken a quantum leap in the past year (for reasons we would rather not discuss!) and it has led to some salutary transformation of our understanding of the rule governing unauthorized practice of law, Pennsylvania Rule of Professional Conduct 5.5.
Pa. RPC 5.5 (a) prohibits a Pennsylvania lawyer from practicing in a jurisdiction “in violation of the regulation of the legal profession in that jurisdiction or assisting another in doing so.” Rule 5.5 (b) prohibits a lawyer who is not admitted to practice in this jurisdiction from “establish(ing) an office or other systematic and continuous presence in this jurisdiction for the practice of law.” In states, like Pennsylvania, that follow the Model Rules, a violation of 5.5(a) could be found if the Pennsylvania lawyer travelled to another state and established an office or a continuous and systematic presence in that jurisdiction without becoming licensed there. But what if the Pennsylvania lawyer is working from their kitchen in another state? Is that home office/kitchen a continuous and systematic presence? Is the lawyer practicing amid the pots and pans establishing an office? Recently, the American Bar Association, provided guidance on these issues in ABA Formal Ethics Opinion 495 https://tinyurl.com/swsxmcsj endorsed just this week by a joint opinion of the Pennsylvania and Philadelphia Bar Association. See https://tinyurl.com/3bc2ndx2.
The summary of ABA Formal Opinion 495 provides:
Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d) including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.
The Rules of Professional Conduct and the disciplinary systems that enforce them are designed to protect the public and preserve the integrity of the profession. The rules prohibiting unauthorized practice are specifically aimed at preventing unlicensed and unregulated lawyers from representing clients. As the ABA and Pennsylvania Bars note, remote practice that is virtually invisible in the state where the lawyer is geographically located poses no threat to the client or the profession. Geography is irrelevant.
In addition to the Joint Philadelphia/Pennsylvania Bar Opinion endorsing ABA Formal Op. 495, the Disciplinary Board cited it with approval in their recent newsletter. See https://tinyurl.com/addck4p6. Also, last summer, the Pennsylvania Bar Association issued an informal ethics opinion to an attorney who was admitted to practice outside of Pennsylvania and was moving to Pennsylvania to work remotely. In Pennsylvania this attorney would not practice Pennsylvania law, would not use a Pennsylvania address in their communications and would not hold themselves out in any way as available to practice law here. The only tie to Pennsylvania would be physical presence in this jurisdiction. The informal opinion, drafted by a member of the Committee on Legal Ethics and Professional Responsibility opined (presciently) that this remote practice would not be establishing a prohibited “systematic and continuous presence” for the practice of law in Pennsylvania and would not “pose an unreasonable risk to the citizens of Pennsylvania or to Pennsylvania courts against rendition of legal services by unqualified persons.” The informal opinion concluded that this conduct would not violate PA R.P.C. 5.5. The ABA and Pennsylvania Bar and the Philadelphia Bar have now issued formal opinions adopting that reasoning; therefore, if the attorney’s “originating” jurisdiction is fine with it, Pennsylvania should be also.
Both formal opinions recognize that the rules of two jurisdictions are implicated by the remotely working attorney: where you are licensed and where you are sitting. If you are sitting in a state that follows the ABA’s Model Rules, the new opinions should inform your interpretation of that rule. Check the rules of both states. As another caveat, the formal opinions provide persuasive, not binding, interpretations and guidance for the regulating authority—in our case—the Disciplinary Board. The trend in these formal opinions demonstrates that Rule 5.5 needs to be modernized to reflect the present and future reality of remote working. As we wrote in December 2020, the board recently amended Comment 5 to RPC 1.5 in response to ABA Formal Ethics Opinion 487. See https://www.law.com/thelegalintelligencer/2020/12/18/a-small-but-significant-change-to-a-rule-successor-counsel-and-contingency-fees/. We hope the board will amend Rule 5.5 or its comment to provide certainty to the evolving jurisprudence here. (Some jurisdictions, including the District of Columbia, have formally eased restrictions on lawyers working where they are not licensed, but only during the pandemic.)
Several states have also issued guidance on the ethics of remote working. Pennsylvania was in the forefront of this effort with PBA Formal Ethics Opinion 2020-300, which provides a thorough and informative guide to avoiding the pitfalls of remote practice, including how to ensure that client confidences are maintained. See //www.pabar.org/members/catalogs/Ethics%20Opinions/formal/f2020-300.pdf. If you are working remotely, this opinion is a necessity.
Technology has wrought innumerable changes to the life and culture of our practices. Whether remote work is a “boon” or a “bane” has yet to be determined. However, with the multiple challenges faced by lawyers in these difficult times, a common-sense interpretation of Rule 5.5, originally promulgated under vastly different circumstances, is a welcome change. These formal opinions are also a reminder that both the Philadelphia and Pennsylvania bars maintain robust ethics support, including hotlines: you can call the PBA Ethics Hotline at 800-932-0311, ext. 2214, or 717-238-6715; you can call the Philadelphia Bar Association Hotline at 215-238-6328.
In times of stress and uncertainty, it is nice to know that help is a phone call away!
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Lynn Marietta Nichols joined the Hill & Associates trial team in 2018. She began her career as a Philadelphia assistant district attorney where she served for more than 22 years working her way up through the ranks to becoming a senior supervisor in the homicide trial unit. She is currently expanding her practice to include representing respondents before the Disciplinary Board.
Reprinted with permission from the March 5, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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