November 2021 | Ethical Issues of Lawyers Working from Home
Increasingly, lawyers are working from home instead of the traditional brick and mortar “downtown” office across the street from the courthouse. The Bar Association of San Francisco recently issued a new ethics opinion addressing ethical hurdles for lawyers working remotely. Bar Association of San Francisco Opinion 2021-1 (August 2021). With remote working situations becoming more common due to the coronavirus pandemic and the advances in technology, lawyers and their law firms may have questions about the ethical logistics of remote work. This timely opinion explains how lawyers can meet their ethical obligations while not physically located in the state in which they are licensed to practice law.
Licensed Outside California, Practicing Remotely from California
The first scenario in BASF’s opinion involves a lawyer licensed to practice in another state, but not licensed in California. The lawyer’s firm is not located in California. The lawyer wants to move to California and continue practicing for the firm remotely. The firm will only hold out to the public that the lawyer is licensed in the other state, and the firm will maintain its office in the other state. The only change in the lawyer’s working situation is that she will be physically located in California. If so, the opinion asks, can the lawyer practice without violating California Rules of Professional Conduct Rule 5.5 or Business & Professions Code §§6125-6126?
The opinion states that yes, the lawyer can practice as long as she follows certain precautions. First, the lawyer cannot “practice law” in California under the Business & Professions Code. Practicing law means “appearing in court, providing legal advice and counsel, and preparing legal instruments and contracts by which legal rights are secured, even if the matter is not in court.” (Estate of Condon (1998) 65 Cal.App.4th 1138, 1142-43) The unauthorized practice of law under circumstances where the lawyer only admitted in another state holds himself out as a California licensed lawyer has caused a lot of lawyers to be denied admission to the California Bar. This certainly isn’t the case where it is wise to for the lawyer to practice as a California lawyer without being admitted to the California Bar.
The opinion discusses interpretations of what “practicing law” means, derived from Condon and another case, Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal. 4th 119, 127 Essentially, a lawyer’s physical presence in California does not mean that she is practicing law in the state. It is more important whether the client lives in California, since the Business & Professions Code strives to protect Californians. Also, the issue of practicing California law, whether substantively or procedurally, will matter.
As applied to the first scenario, the ”primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.” (Birbrower, supra, 17 Cal.4th at 128). Here, the lawyer in the scenario is not representing California clients, does not have an office in California, and is not holding herself out as a California lawyer. Thus, the opinion concludes, she probably is not practicing law within the meaning of the Busines & Professions Code. If she started working on matters for California clients of her firm, the answer might be more complicated.
The second precaution the lawyer must take is not establishing an office or “systematic or continuous presence” in California to practice law. Here, the opinion notes, the lawyer is simply using modern technology to continue her practice in another state. She does not have an office or plan to open a firm office in California. Also, California Rules of Professional Conduct Rule 5.5 refers to maintaining an office for the purpose of practicing law in California, not for the purpose of practicing another jurisdiction’s law.
Finally, the lawyer cannot represent to the public that she is licensed to practice law in California. The scenario makes clear that the lawyer and her firm are not doing so; they only are representing that she is licensed in the other state. Thus, the lawyer’s situation does not pose a threat of unethical representation that could harm the public interest.
Licensed in California, Practicing Remotely from Outside California
The second scenario explored in the opinion involves a lawyer only licensed to practice law in California who lives in another state and wants to practice California law from that state. The opinion concludes that the lawyer must consult the other state’s rules of professional conduct to determine whether she can do so. California Rules of Professional Conduct Rule 5.5 prohibits California-licensed lawyers from practicing law in jurisdictions where doing so would violate those jurisdictions’ rules of professional conduct. The trend across the United States has been to be more practical and focus on the work the lawyer is doing as opposed to where the lawyer is actually sitting when the legal services are provided.
Lawyers can work remotely even in other states as long as they are not “practicing law” in violation of the ethics rules. The new ethics opinion from the Bar Association of San Francisco considers two serious questions for lawyers who want to work remotely but still need to follow California’s and other states’ ethics rules. Whether lawyers can work remotely and comply with the rules depends on several factors, but the overriding question is whether the public is protected if a lawyer engages in remote work. Misleading the public by representing that you are licensed in a state in which you are not will certainly subject you to discipline.