The pandemic has sent lawyers packing — to makeshift offices in their bedrooms, basements and attics. But what happens when a lawyer’s home office is located outside the state in which the lawyer is licensed to practice? Is it ethical for a lawyer who is licensed in one state to practice from a home office across the state line?
In a joint ethics opinion yesterday, the Pennsylvania Bar Association and the Philadelphia Bar Association concluded that a lawyer licensed in Pennsylvania may work remotely from another jurisdiction, even if the lawyer is not licensed in that jurisdiction, provided the lawyer takes appropriate steps.
In so ruling, the two bar associations adopted Formal Opinion 495, issued by the American Bar Association on Dec. 16, 2020, which held that 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.
The ABA opinion included a proviso: The lawyer may 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.”
The two Pennsylvania bars agreed with the ABA’s approach and adopted it as the rule in their state.
“The Committees conclude that a Pennsylvania-licensed lawyer who lives outside of Pennsylvania in a state where he or she is not licensed may practice from a home office physically located in the other state provided that the other state does not treat such remote practice as the unauthorized practice of law,” their opinion said.
Both opinions turned on the interpretation of ABA Model Rule 5.5, governing unauthorized and multijurisdictional practice of law. Among other things, the rule says that a lawyer may not:
- establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
- hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
Both the ABA and Pennsylvania opinions agree that a lawyer does not “establish” an office in a jurisdiction merely by working from a home office within that jurisdiction. As the ABA opinion said:
“A local office is not ‘established’ within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.”
The Pennsylvania opinion agreed with this result, citing language from the ABA opinion that the purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners, not to penalize a lawyer who is “for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located.”
Here are the full opinions: