Unauthorized practice or work-from-anywhere? An encouraging update from New York.

The pandemic changed the way we do things.  Some changes are bound to become permanent. One that piques my interest is the pandemic’s impact on the profession’s view of virtual practice.

Last month, the New York State Senate approved a bill to repeal a law requiring NY lawyers who reside out-of-state to maintain a physical office within New York.  As Reuters noted here, the NY bill “has big implications for attorneys looking to stay remote after the coronavirus pandemic.”

Karen Rubin writes The Law for Lawyers Today, one of my favorite legal ethics blogs.  Last week, Karen posted For Lawyers, work-from-anywhere might be the new model: NY & Florida developments. In addition to the New York bill, Karen refers to the Florida Supreme Court’s decision to approve an advisory opinion issued by the Florida State Bar’s Standing Committee on the Unauthorized Practice of Law.  The opinion concludes that a lawyer who is licensed in another state, but not in Florida, does not violate Florida’s rules on unauthorized practice by providing legal services to out-of-state clients on matters not involving Florida law while working remotely from Florida.  I blogged about the Florida opinion here.

In the post, Karen notes:

  • “The work-from-anywhere concept was already percolating in the form of “virtual law offices” when the COVID-19 pandemic arrived and accelerated the acceptance of new practice models using remote technology to reach clients, courts and each other.”

Indeed, in 2019, the Utah State Bar issued this advisory opinion.  Referring to a similar opinion from Ohio, the Utah opinion includes my favorite quote on issues associated with working remotely and unauthorized practice:

  • “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 the same—none.”

 

Again, as Karen writes, the pandemic seems to have “accelerated” the bar’s acceptance of remote work.  Last December, I posted ABA issues common sense guidance on working remotely.  The post discusses the ABA Formal Advisory Opinion 495 and it conclusion that remote practice, subject to certain caveats, does not constitute unauthorized practice.  Karen’s post references similar caveats in the Florida opinion, stating that “[t]he now-official opinion raises these guardrails:

  • you can’t establish a ‘place of business or office’ in Florida (your porch, den, etc. doesn’t count);
  • your work must be solely for your regular (non-Florida) clients, on matters that don’t pertain to ‘Florida law; and
  • you can’t ‘hav[e] or [creat[e] a public presence or profile in Florida as an attorney.’”

I liked Karen’s statement that the Florida opinion “gives official sanction to non-Florida-licensed snowbirds and others who want to sojourn in the Sunshine State and continue to service their non-Florida clients.”

Lessons from the pandemic suggest that “work-from-anywhere” can, well, “work.” I’m encouraged that the profession is trending towards what I think is a commonsense approach to remote practice.  

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One thought on “Unauthorized practice or work-from-anywhere? An encouraging update from New York.

  1. Does the second bullet point in the summary of the Florida opinion mean that it would not be permissible to handle from a home office in Florida, e.g., a lawsuit in a federal court in a state other than Florida that involves only federal law, but the client is a Florida-based company or individual?

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