by Honieh O. H. Udenka
On March 11, 2020, the World Health Organization (WHO) declared a pandemic in response to the spread of SARS-CoV-2, the novel coronavirus that causes the disease known as COVID-19.1 On March 13, 2020, the executive branch of the United States government declared a national emergency in response to the COVID-19 pandemic.2 Since then, numerous state, health, and local officials issued stay-at-home orders, requiring that individuals remain at their place of residence, with limited exceptions for essential activities.3 As such, many white-collar industries have transitioned their workforce to remote work-from-home arrangements, and the legal industry is no exception. In short order, many lawyers have moved their practices online, and shifted from office buildings to home offices. This is particularly noteworthy in an industry where in-person interactions—in office settings with colleagues and clients, in court, and at depositions—have traditionally been sacrosanct.
A protectionist hallmark of the legal profession is that lawyers are geographically limited to practice within jurisdictions in which they are licensed, and the practice of law in other jurisdictions is prohibited in all but a few circumstances. For example, the unauthorized practice of law in California is a crime.4 However, it is becoming increasingly apparent that with the combination of audio and video technological advances and the legacy of the COVID-19 pandemic, a remote work model is likely to endure beyond the days of the COVID-19 pandemic and may in fact become the “new normal.” Lawyers may now live in states that they do not practice in, and practice in states that they do not live in. This new normal is likely to result in more geographic freedom for lawyers who can now theoretically work from anywhere in the country with a laptop and internet connection, as long as they do not run afoul of unauthorized practice laws. This article highlights the rules relating to lawyers who are not licensed in California, but who reside here while maintaining their out-of-state practice.
Rule 5.5 of the American Bar Association (ABA) Model Rules of Professional Conduct prohibits lawyers from practicing in jurisdictions in which they are not admitted, subject to some exceptions. It provides in pertinent part that a “lawyer who is not admitted to practice in [a] jurisdiction shall not . . . except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” This rule arguably could prohibit a lawyer who is not licensed in a jurisdiction, but who resides there, from maintaining an out-of-state practice, since the lawyer’s residence in the state would likely amount to a “systematic and continuous presence” in the jurisdiction.
Considering the COVID-19 pandemic, on December 16, 2020, the ABA issued Formal Opinion 495—Lawyers Working Remotely, to provide further clarity on Rule 5.5 in light of lawyers’ increasing dependence on remote work. Per the opinion:
Technology has made it possible for a lawyer to practice virtually in a jurisdiction where the lawyer is licensed, providing legal services to residents of that jurisdiction, even though the lawyer may be physically located in a different jurisdiction where the lawyer is not licensed. A lawyer’s residence may not be the same jurisdiction where a lawyer is licensed. Thus, some lawyers have either chosen or been forced to remotely carry on their practice of the law of the jurisdiction or jurisdictions in which they are licensed while being physically present in a jurisdiction in which they are not licensed to practice.
The opinion further provides that:
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 unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction . . . .
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.
California’s version of Rule 5.5 is nearly identical to the ABA rule. It provides in pertinent part that “[a] lawyer who is not admitted to practice law in California shall not . . . establish or maintain a resident office or other systematic or continuous presence in California for the practice of law.”5 Thus, even though Formal Opinion 495 does not directly interpret California’s unauthorized practice of law, it provides some guidance on how remote work might come to be seen in the state.
The ABA’s approach is the right one—the geographical limitations imposed by the unauthorized practice of law rules represent a vision of a technologically limited world that has long passed away, as evidenced by the rapid shift to remote work necessitated by the COVID-19 pandemic. Lawyers should be able to live where they choose, and practice the law of the jurisdiction in which they are licensed, as long as they do not improperly hold themselves out as practicing locally or represent that they are licensed in the local jurisdiction. This approach serves the dual goals of preventing out-of-state lawyers from flooding the legal markets in which they are not licensed, while also protecting clients from incompetent legal counsel of unlicensed practitioners. And, it allows lawyers the freedom to choose where to live—whether for financial, family, or other quality of life reasons.
(1) WHO Director-General’s opening remarks at the media briefing on COVID-19 - 11 March 2020, World Health Organization, March 11, 2020, https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020.
(2) Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, White House, available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
(3) For example, on March 19, 2020, the Governor of the State of California entered a stay-at-home order, resulting in a partial shutdown of businesses and offices for a significant portion of 2020 and part of 2021. Executive Order N-33-20, Executive Department of the State of California, https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.
(4) Cal. Bus. & Prof. Code § 6125 (“No person shall practice law in California unless the person is an active licensee of the State Bar.”); see also id. at § 6126 (a) (“Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment.”).
(5) California Rules of Professional Conduct, Rule 5.5 (b)(1) (emphasis added). The comment to the Rule provides that “[p]aragraph (b)(1) prohibits lawyers from practicing law in California unless otherwise entitled to practice law in this state by court rule or other law,” and provides the following exceptions to the rule: counsel pro hac vice, appearances by military counsel, certified law students, out-of-state attorney arbitration counsel program, registered foreign legal consultant, registered legal services attorneys, registered in-house counsel, attorneys practicing temporarily in California as part of litigation, and non-litigating attorneys temporarily in California to provide legal services.
Honieh O. H. Udenka is an attorney at the law firm of Brown Rudnick LLP, based in Irvine, California, and her practice focuses on commercial litigation. Honieh is a member of the OCBA’s Professionalism and Ethics Committee and serves on the board of the Orange County chapter of the Thurgood Marshall Bar Association. She can be reached at email@example.com. The views expressed herein are her own.