Work From Home Boom Reignites Atty Licensing Questions

By Cara Bayles
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Law360 (June 12, 2020, 12:42 PM EDT) -- When law offices shuttered to stop the spread of the coronavirus back in March, attorneys hunkered down at home — sometimes, across state lines from where they work and are admitted to practice.

For some legal ethics attorneys, that's raised questions about whether lawyers are unwittingly flouting local licensure rules.

"This is an issue that law firms are concerned about," according to Janis Meyer, a professional liability attorney at Clyde & Co. LLP. "Everybody had to go home. Lawyers found a place to stay in the beginning or middle of March and practiced from there."

Most states have adopted the American Bar Association's model rule on the unauthorized practice of law, which states a lawyer who isn't admitted in a state cannot "establish an office or other systematic and continuous presence ... for the practice of law." Yet that same rule also allows attorneys to provide out-of-jurisdiction legal services "on a temporary basis."

So does that mean attorneys who work from home in a state where they aren't licensed are complying with state law? It depends on whom you ask and where you practice.

Bruce Green, a Fordham law professor who served as reporter to the ABA Commission on Multijurisdictional Practice, said he doesn't think telecommuting presents an issue, because it didn't before the pandemic. Plenty of lawyers working in New York reside in Connecticut or New Jersey without facing prosecution for finishing tasks in their home offices.

"Lawyers of course take work home with them because lawyers work long hours and modern technology allows you to work from home on weekends or nights," he said. "I don't think before the pandemic that states thought that it was unauthorized practice of law as long as you're not holding yourself out as admitted there, and you're not seeking or servicing clients in that state."

But Trisha Rich, a partner at Holland & Knight, said while it's true that some state bars "turn a blind eye" to attorneys who live in one state and work in another, enforcement can vary. Before the novel coronavirus, some states had been cracking down on attorneys who straddled jurisdictions, she said.

"I think we've seen an uptick in prosecutions where someone moved to a jurisdiction and didn't properly register, but we also see them when somebody just lives over the border," she said.

Rich pointed to the case of Alice Jones, a Kentucky-based Huddleston Bolen LLP lawyer who applied for an Ohio law license when her firm was absorbed by Dinsmore.

While she awaited admission, she continued to work on Kentucky matters from the Cincinnati office, thinking she was in the clear under state law. But an Ohio character and fitness panel found she'd engaged in unauthorized practice, because the local rule "speaks to the practice of law, not just the practice of Ohio law." She fought that ruling, eventually winning before the Ohio Supreme Court.

And just a few weeks ago, Rich's colleague, David Elkanich, won an Oregon Supreme Court case over the right to temporarily practice after relocating.

Elkanich's client, James Harris, had been recruited from Pennsylvania to work as general counsel for Portland Public Schools. He took the job, thinking his work was covered by the temporary allowance in the local rules while his Oregon license application was pending.

The bar eventually charged him with unlawfully practicing, saying the temporary exemption didn't apply because Harris intended to permanently set up shop in Portland. But in May, the state's high court disagreed.

"We see bars cracking down on this a little bit more than they have in the past," Rich said. "In general, that's what we see in the marketplace: Bars are paying more attention to this right now, particularly with respect to in-house counsel."

Jurisdictional practice rules have been around as long as lawyering has in the U.S., said Green, though he called them "a historical accident."

"In other countries for the most part you wouldn't divide the country up into pieces. They just practice national law," he said. "But historically, every colony and then every state [in the U.S.] had authority over their lawyers, and the states want to make sure their lawyers are law-abiding and regulated and competent to do it."

States adopted modern "unauthorized practice of law" rules in the early 20th century, and those provisions applied equally to lawyers licensed in other states and to nonlawyers, according to an ABA report.

Since the 1960s, however, UPL rules have been called into question, especially as attorney expertise focused more on practice areas than the quirks of local jurisdictions. That's why in July 2000, the ABA commissioned the study that Green worked on, one that analyzed ethics rules and recommended changes.

The resulting updates to the ABA's model rules, implemented in 2002, included temporary practice allowances for out-of-state lawyers. But Rich said they didn't plan for this scenario.

"It's a little tricky right now," she said. "In all the years I've been practicing in legal ethics and professional responsibility, never once have I heard a UPL hypothetical about a global pandemic forcing lawyers to hunker down outside their home jurisdictions."

The D.C. Court of Appeals issued an opinion in late March clarifying that "persons who are not District of Columbia bar members may practice law from personal residences or other locations within the boundaries of the District of Columbia."

None of the experts Law360 interviewed knew of any other jurisdictions making similar announcements.

But even if practicing from home technically violates local licensing rules, Meyer said, it's unlikely lawyers will be punished for it, at least during the pandemic.

"I don't think the disciplinary authority or regulator in a particular state is going to prosecute lawyers for practicing the same way they would if they were sitting in their offices, just because they're doing it at home," she said. "They have no choice. They can't go to the office."

Rich is still hopeful that, down the line, the pandemic could prompt state licensing authorities to revisit their rules and provide more leeway for attorneys who work on matters based on where they are licensed even if they're not physically there.

"Just because somebody went to their cabin in northern Michigan doesn't mean that all of a sudden they're a completely incompetent Illinois lawyer," Rich said. "I'm hoping we might be able to open this discussion up a little more, and we might."

"The practice of law is like turning an oil tanker," she added. "It moves very slowly and deliberately. How we regulate it is a lagging indicator."

--Additional reporting by Andrew Strickler. Editing by Rebecca Flanagan and Alyssa Miller.

Correction: This story previously misidentified the D.C. court that issued an opinion on local practice rules during the pandemic. The error has been corrected.

For a reprint of this article, please contact reprints@law360.com.

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