What GCs Should Consider As They Hire Remote Attys

By Michele Gorman
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Law360 (November 25, 2020, 7:24 PM EST) -- The at-home work environment fueled by the coronavirus pandemic has pushed general counsel to expand their talent pools by considering permanent remote lawyers, but businesses should weigh issues like attorney licensing and virtual onboarding that can complicate the hiring of staffers who don't live near a company office.

As the U.S. continues to set daily records for new coronavirus cases and awaits wide distribution of a vaccine, remote work doesn't appear to be disappearing anytime soon. Some legal decision makers are holding out for their departments to make a full return to an office setting, while others are seizing the opportunity by interviewing in-house counsel who would work at home indefinitely — even after the pandemic subsides.

Now more than ever, legal recruiters say in-house leaders are open to more flexible work options. Employers are hiring lawyers to be fully remote or partially remote or welcoming in-house counsel to work at a specific company outpost as the only lawyers at that location, said Kristen Verrastro, attorney search director with Special Counsel's PLL.

"We're seeing broader variations on what type of positions or what type of work climates can work for people," she said. "But I don't think there's a one-size-fits-all solution, and I don't even think there's a one-size-fits-all 100% remote or 100% not, so that's kind of exciting. It's more of a custom solution."

Planning for lawyers to work remotely indefinitely can allow general counsel to open up their teams to a much larger world of available talent, especially for positions that require niche skills or a certain level of experience, Verrastro said.

But permanent remote positions are not a solution for all companies. Take the issues surrounding licensing, for example.

Ray Perez, a former longtime in-house attorney at American Honda Motor Co. Inc. who is now of counsel at Fisher Phillips LLP, warned general counsel about the unauthorized practice of law that could accompany remote work environments.

Under the American Bar Association Model Rule 5.5, "a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so."

States' in-house counsel regulation "implicitly presumes that when you hire that in-house person, they'll be working at an office or a branch of the corporation, in that office setting, in that state," Perez said.

The licensing rules vary by state. Perez pointed out that Ohio, for example, declares that an attorney must have a "systematic and continuous presence" in the state to qualify for in-house status, while California requires that the in-house attorney reside there.

Some regulations are more ambiguous. For example, in-house attorneys must be "employed in Illinois" to work in the state, while Kentucky's rule says the in-house attorney must perform legal services "in this Commonwealth for such employer."

To work as corporate counsel, a lawyer must be admitted to practice law in the state where the company is located, or fall under an exemption for multistate practice, which includes in-house counsel registration, Perez said. The in-house counsel exemption would allow them to be admitted in one state while working for a company in a different state without retaking the bar, he added.

The licensing rules haven't yet caught up to the current environment in which the majority of an in-house department might work continuously from home. Say a lawyer lives in Kentucky and previously worked out of an office in Ohio for an Ohio company as an Ohio registered in-house counsel.

"Now that they're working from home, the question is, 'Are they conducting unauthorized practice if they are still working for that Ohio company from their home in Kentucky?'" Perez said. "The rules aren't really clear on that."

He suggests legal teams avoid assumptions and consult with counsel to avoid running afoul of the rules.

"You really need to look at the facts of each case and make sure you've protected yourself from the unauthorized practice," he said.

He added, "Don't presume what you did in the past is OK today."

It can get even more complicated when hiring lawyers in other parts of the world. For U.S. general counsel hiring lawyers in another country, they should request documentation that proves they're licensed in that territory, Audrey Rubin, president of Rubin Solutions and a senior adviser at BarkerGilmore LLC said.

"You shouldn't have to remind people; it should be part of the onboarding policies to maintain your license," Rubin said. "But as a GC, I would want to double-check."

Employees and job candidates are largely driving the growing trend of companies taking a harder look at remote options, as workers move to live in more remote or desirable settings, Rubin said.

And some companies that previously weren't open to the idea are coming around to it.

"Employers should be thinking about this all the time, because you can hire people in lower-cost locations who are excellent and don't really need to show up and see people in person all the time," Rubin said.

The findings published last month from a 2020 workforce trends survey by staffing firm The Adecco Group showed that 42% of in-house and law firm attorneys said their organizations opposed flexible or remote work before the pandemic but now promote it, while 11% said they continue to oppose the idea.

But in the long term, 22% of legal departments and firms anticipate permanent remote work enduring as one of the lasting changes of the pandemic, and 52% said the same for part-time remote work.

Other surveys have shown that more flexible work arrangements can lead to a more satisfied and productive workforce. 

Additional pandemic-related issues for general counsel to consider include virtually interviewing candidates and onboarding new hires. Experts recommend general counsel take extra steps to make up for the lack of an in-person meeting, such as a more vigorous reference check.

Once they hire a remote worker, general counsel should go above and beyond to make sure the corporate counsel are integrated into the department, company and other business units by proactively setting up virtual meetings.

"It takes a lot of work," Rubin said. "It's not like you can walk down the hall and [say], 'Oh, why don't you meet the head of this,' or 'Oh, let's have lunch with the head of that.' You have to intentionally and systematically organize these things and keep them going."

And experts say it's important to keep in mind that as the majority of the workforce continues to live and work in the same place, in-house leaders need to help maintain positive morale, as well as consider the different time zones their team members work in.

A poll released in June found that nearly a third of in-house counsel were experiencing high or very high burnout during the pandemic, according to the Association of Corporate Counsel. More than half of the 460 respondents said they were working more hours because they're working remotely.

Ultimately, as workplaces evolve, it's crucial for general counsel to assess their own businesses and how this growing trend of hiring remote workers — whether it be permanent or on a part-time basis once the pandemic ends — might benefit their teams and overall contribution to the company.

"It's a conversation that a general counsel certainly would want to have internally at their own business to decide this," Verrastro said. "It's something new to think about that may be helpful — it may not be, but it may be."

--Editing by Nicole Bleier.

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