Work is Where the Internet Is—And That’s Okay
The practice of law has been gradually transforming. The traditional office-based model is morphing into one in which lawyers practice virtually and remotely. COVID-19 has significantly accelerated this law firm evolution. The pandemic has forced lawyers to work remotely from such exotic locations as the kitchen table, the basement, and even the closet. For a lucky few, the remote location may actually be a vacation home. But what happens when these temporary home offices are not located in the state where the lawyer is licensed to practice?
Rule 5.5 prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. The rule also prohibits a lawyer from establishing an office or other “systematic and continuous presence” in the jurisdiction or holding out to the public that the lawyer is admitted to practice law in the jurisdiction. Does the North Carolina lawyer whose basement is not in North Carolina run the risk of being accused of engaging in the unauthorized practice of law?
In an effort to allay lawyers’ fears, the American Bar Association's Standing Committee on Ethics and Professional Responsibility published ABA Opinion 495 (12/16/2020). The ABA opinion reminds lawyers that the Rules of Professional Conduct are “rules of reason,” and their purpose has to be examined to determine their meaning. The opinion states that the purpose of the limitations set out in Rule 5.5, as to who can practice law, is to protect the public from unqualified persons providing legal services. According to the ABA, “[t]hat purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.” Id.
To remain “invisible” to a local jurisdiction, the ABA opinion advises lawyers to avoid holding themselves out as being licensed to practice in the local jurisdiction, avoid advertising or otherwise suggesting that the lawyer has an office in the local jurisdiction, and, of course, avoid providing or offering to provide legal services in the local jurisdiction. In addition, the remote working lawyer needs to make sure that the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law.
More specifically, the opinion advises that the lawyer should not hold out to the public an address in the local jurisdiction as an office, and should not include a local jurisdiction address on letterhead, business cards, websites, or advertisements. Furthermore, these materials should clearly indicate the lawyer’s jurisdictional limitations and refrain from offering to provide legal services in the jurisdiction. Id.
The opinion concludes that:
[I]n the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.
Id. The ABA opinion cites Utah Ethics Opinion 19-03 (2019) which states: “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is…none.”
The North Carolina Rules of Professional Conduct have always allowed a lawyer licensed in North Carolina to provide legal services to their North Carolina clients even if the lawyer is out of state. North Carolina does not have a physical office residency requirement. However, as emphasized on the ABA opinion, a North Carolina lawyer who is working remotely out-of-state needs to be aware of that jurisdiction’s rules on what constitutes the practice of law in that state or otherwise violates their Rule 5.5 equivalent. Even if the lawyer is only providing services to North Carolina clients, the lawyer could potentially violate that state’s UPL statute or rule, which could in turn violate our Rule 5.5(a) (“A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.”).
In addition to considering the local state’s practice of law restrictions, the remote lawyer needs to consider his client’s reasonable expectations when determining what he needs to tell his clients regarding his relocation. For example: Does the client know the lawyer is not actually located in the state where the services are being provided, and does the client know how they can contact the lawyer? A lawyer may not falsely hold himself out as being in the state. A North Carolina licensed attorney, who is working remotely from Hilton Head during the pandemic, cannot give the false impression that they are still physically located in North Carolina. Clients may want to make a choice on representation based upon whether they can meet with the lawyer in person if necessary, so making it look like the lawyer is in the state when that’s not true could be a misrepresentation. To avoid confusion of clients who might presume the lawyer is still present at a physical address in the licensing jurisdiction, the lawyer should include a notation in each publication of the address such as “by appointment only.” See 2012 FEO 6 (it is not misleading for a law firm to list a time-shared leased office address on letterhead or in advertising so long as the communication contains an explanation that accurately reflects the law firm’s presence at the address (i.e.,“by appointment only”)).
The remote lawyer also needs to consider any technological limitations presented by his temporary home office. A lawyer needs to be aware of the security level of the services they’re employing to “remote-in” to their North Carolina practice. This is particularly important if someone goes international during this time. Different countries will have better or worse technological and security infrastructures, so a lawyer should look into that before moving abroad. It’s not as simple as “I’ll just take my laptop to France for a year!”
The primary ethical concern with regards to technology in a remote environment is confidentiality. Lawyers working remotely continue to have the duty to protect confidential client information. Rule 1.6(c) states that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Additionally, as a part of maintaining a lawyer’s competency, comment  to Rule 1.1 states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice[.]” Simply put, if a lawyer is going to utilize technology to work remotely, the lawyer needs to have a basic understanding of the technology to ensure that the lawyer complies with his or her professional obligations. See also 2011 FEO 6 (Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property) and 2005 FEO 10 (Virtual Law Practice and Unbundled Legal Services).
Lawyers should take the time to review their home or remote office network security to ensure their access to the internet (network equipment, laptops, mobile devices, etc.) is secure. Similarly, lawyers using online services (cloud storage, practice management programs, etc.) should take the time to vet the reliability and security of those services. While it is not a lawyer’s duty to know the intricacies of security protocols employed by the services they utilize, it is a lawyer’s duty to take reasonable care in selecting and vetting a particular service to determine if confidential client information will be protected while using the service, what vulnerabilities might exist, and how the lawyer can best protect against those vulnerabilities. See 2011 FEO 6 (“[W]hile the duty of confidentiality applies to lawyers who choose to use technology to communicate, this obligation does not require that a lawyer use only infallibly secure methods of communication. Rather, the lawyer must use reasonable care to select a mode of communication that, in light of the circumstances, will best protect confidential client information and the lawyer must advise effected parties if there is reason to believe that the chosen communications technology presents an unreasonable risk to confidentiality.”) (internal citations omitted).
At a minimum, lawyers should spend some time researching the online services they intend to use. Review the company’s information on security, and search for third party reports about the services. Doing so may reveal past breaches and recent security concerns—as well as the company’s response to those events—that can inform your selection. Lastly, lawyers should be mindful of who (or what) could overhear confidential conversations taking place while working remotely. From spouses and kids to devices equipped with digital voice assistants (e.g. Amazon Echo or Google Home), remote locations are ripe with listening ears. Step into another room out of earshot of anyone else, or turn off the microphone on your home devices when making a confidential call.
Remember that a lawyer’s duty to protect confidential information is constant, and the considerations for maintaining that protection are ever-evolving. Lawyers should continuously educate themselves on the state of technology and the services used to facilitate their practices, and make necessary adjustments (including abandonment, if necessary) when discoveries are made that call into question services previously thought to be secure. Nevertheless, even though it is not as simple as “I’ll just take my laptop to France (or the basement) for a year,” as we have all learned, working from a home office is doable and ethical—even if the home office is located in a jurisdiction where you are not licensed. In conclusion, home is where the heart is. During a global pandemic, work is where the internet, dogs, children, and laundry are.