ABA Formal Opinion 495 on Working Remotely
January 11, 2021
By: Cecil E. Morris, Jr. and John M. Tanner
At our 2020 Annual Ethics for In-House Counsel Seminar in December, we addressed Legal Ethics in the Time of COVID-19. That presentation was through the framework of ABA Formal Ethics Opinion 482, Ethical Obligations Related to Disasters (Sept. 19, 2018). Although ABA Formal Opinion 482 focuses on natural disasters such as hurricanes, floods, tornados and the like, it is also applicable to COVID-19 as a slow-moving disaster. One of the issues raised in ABA Formal Opinion 482 is the Unauthorized Practice of Law (”UPL”).
Shortly thereafter, on December 16, 2020, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495, which addresses the reality of lawyers working remotely during the pandemic. ABA Formal Opinion 495 provides common sense direction to lawyers, who have either chosen or been forced to carry on remotely their practice of law of the jurisdiction(s) in which they are licensed while being physically present in a jurisdiction where they are not licensed.
ABA Formal Opinion 495, of course, construes the ABA Model Rules of Professional Conduct, specifically Rule 5.5. Colorado does not follow ABA Model Rule 5.5 precisely, but Colorado’s approach is substantially similar. Therefore, ABA Formal Opinion 495 provides valuable guidance. Colorado Rule of Professional Conduct 5.5(a) is like ABA Model Rule 5.5(a), prohibiting UPL. In contrast, Colorado addresses temporary practice and conditions of practice in C.R.C.P. 205.1. (Certifications/limited admissions to practice law in Colorado are addressed in C.R.C.P. 204, and other authorizations to practice law are addressed in C.R.C.P. 205).
The summary of 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. (emphasis added)
Thus, a lawyer admitted in one jurisdiction, but working remotely in another jurisdiction in which he or she is not admitted, should follow the conclusions of ABA Formal Opinion 495 and should determine whether the jurisdiction in which the lawyer is working remotely constitutes the unauthorized practice of law under the law of that jurisdiction.
The ABA Standing Committee declined to address this, because it is an issue of law outside of the Committee’s purview. Some jurisdictions, including Florida and the District of Columbia, have eased restrictions on lawyers working where they are not licensed during the pandemic. Several other states already allowed lawyers to practice in their jurisdictions if they are licensed elsewhere as long as they disclose that they are not licensed to practice in that state. These include Arizona, Minnesota, New Hampshire, North Carolina, Maine, and Utah. In contrast, however, other states are much more restrictive.
ABA Formal Opinion 495 is available here.