Login | April 25, 2024
One more remote office ABA Formal Opinion
RICHARD WEINER
Technology for Lawyers
Published: April 23, 2021
Last December, the ABA issued Formal Opinion 495, a four-page opinion referencing the ability to practice law remotely vis a vis bar licensing. The fundamental question this Opinion answered is something along these lines: “I’m licensed to practice law in Ohio but, because of the pandemic, I’ve moved semi-permanently to one of my many vacation homes in Hawaii and/or the French Riviera. How does that affect my ability to practice?”
The answer, of course, is “it depends.” The new opinion essentially construes Model Rule 5.5, The Unauthorized Practice of Law, to cover remote working.
In general, the opinion states that a lawyer who is physically present in one jurisdiction may practice remotely in any jurisdiction in which that lawyer is licensed. So, in out example, in most cases anyway, you could attend a pretrial by Zoom in an Akron courthouse from Hawaii. With some caveats.
First, that doesn’t mean that you can practice in Hawaii (unless you’re licensed there). You also can’t advertise in the remote state. That should be self-explanatory, but the devil is always in the deets.
However, there may be some state bars that do not allow a lawyer to practice remotely from that state (although I don’t have a specific example). But if, say, Hawaii’s bar does not allow a lawyer in residence there to practice in another state, then you couldn’t attend that Zoom hearing. Those rules would be under the unauthorized practice of law.
The same questions would have to be answered in the case of practicing in federal court or practicing pro hac vice.
Several state bars have already construed that Formal Opinion 495 applies to their licensees, including state bars in Pennsylvania and New York. No word on Ohio, at this point. Other states have simply allowed this kind of remote practice as simply a result of the pandemic. According to a post on JDSupra, states allowing 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, include Arizona, Minnesota, New Hampshire, North Carolina, Maine, and Utah.
ABA Formal Opinion 495 is available here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-495.pdf