New Jersey approves remote work by lawyers who live in NJ but who are not admitted there.

Yesterday I blogged about Redesigning Legal, a project dedicated to rethinking and redesigning the attorney regulation system.  The project includes looking anew at the definition of the “unauthorized practice of law.”  With that in mind, I’m happy to report that yet another jurisdiction has concluded that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.

Legal Ethics

Last week, New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742.   Lexology’s Professional Responsibility Blog reported the opinion.

The committees framed the issue as follows:

  • “Many non-New Jersey licensed lawyers have called the attorney ethics research assistance hotline with questions about whether they would be considered to be practicing New Jersey law if they work remotely from their New Jersey homes for law firms, or as in-house counsel for companies, that are located out-of-state.”

The committees concluded that:

  • “Non-New Jersey licensed lawyers may practice out-of-state law from inside New Jersey provided they do not maintain a ‘continuous and systematic presence’ in New Jersey by practicing law from a New Jersey office or otherwise holding themselves out as being available for the practice of law in New Jersey.”

With the opinion, New Jersey joins the conclusion reached by a growing number of jurisdictions.[1]

How might this work in real life? Well, I think it’d be something like this.

My father lives in North Carolina. Let’s say that I decided to spend the winter there.[2]  Assuming my bosses approved, if North Carolina takes the same view as the ABA, New Jersey, Florida, Utah, Maine, and Pennsylvania, I’d be able to continue doing my job without getting admitted in North Carolina so long as I don’t hold myself out as practicing there or otherwise establish a continuous and systematic professional presence there.  On this point, I’m a big fan of statements of two statements.

The first appears in ABA Formal Opinion 495.  For UPL purposes, lawyers do not “hold themselves out to the public” when they are “for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”  Invisible is how I prefer to roll.

The second, which is my favorite, appears in Utah State Bar Opinion 19-03. Referencing an Ohio decision that was on point, the Utah State Bar asked:

  • “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.”

Finally, while not today’s topic, the NJ opinion and others like it remind me of attorney wellness.

For some, working from home helps with wellness and work-life balance. Imagine a lawyer who is licensed in New Hampshire, has a New Hampshire office, and who practices only New Hampshire law.  Further imagine that the lawyer lives in Vermont but is not admitted here. Finally, imagine that the lawyer prefers to work from home a few times a week.

What should we care as long as the lawyer doesn’t do anything to suggest that the lawyer has a Vermont office, practices Vermont law, or is willing to provide legal advice on Vermont matters?  The lawyer remains subject to New Hampshire’s disciplinary jurisdiction for all of lawyer’s New Hampshire matters. So, there’s no risk to consumers, to the Vermont legal system, or to the Vermont legal profession. By understanding and accepting that, perhaps we help the lawyer to look out for their own wellness.

Rethink. Redesign.

[1] Bar Association of San Francisco Opinion 2021-1; Florida Supreme Court and Florida Bar (2021); Pennsylvania Bar Association & Philadelphia Bar Association Opinion 2021-100; ABA Formal Opinion 495 (2020); District of Columbia Opinion 24-20 (2020); Utah Ethics Opinion 19-103 (2019); Maine Ethics Opinion 189 (2005)

[2] Mom – this is a HYPOTHETICAL for learning purposes only.

Rethinking & Redesigning Attorney Regulation

Wednesday I’m on a panel that is part of the VBA’s Annual Meeting.  Laura Wilson, Ian Carleton, and I will present Wellness Tips for Legal Employers.  Laura and Ian co-chaired the Legal Employers Committee of the Vermont Commission on the Well-Being of the Legal Profession.  Their committee’s recommendations are fantastic and will serve as the outline for our seminar.

Anyhow, there was a time when a CLE on attorney wellness was big news.  Not anymore.  These days wellness is part of the Vermont legal profession. Thank goodness.  Alas, I’ve not been as successful gaining traction on reforming the way that we regulate lawyers.

In May 2016, I posted as series of blogs on Alternative Business Structures (ABS).  My goal was to spark debate over whether to amend Rule 5.4 of the Vermont Rules of Professional Conduct to drop the prohibition on nonlawyer ownership of and investment in law firms.  It didn’t take.

But now I’m back!

redesigning_legal_hero

Nationally, “reregulation” is a movement that aims to rethink attorney regulation.   The goal is to consider whether the current regulatory structure unnecessarily limits both innovation and access to legal services.  Stated differently, are there regulatory changes to be made that will increase access to legal services without compromising consumer protection?

Several groups are leading the discussion.  One is the Institute for the Advancement of American Legal System. I’ve had the good fortune to get to know some of the folks at IAALS through their Unlocking Legal Regulation project.  Another is the American Bar Association’s Committee on the Delivery of Legal Services.  The committee’s current chair is none other than Vermont’s own Fritz Langrock.

Earlier this year, IAALS, the Delivery Services Committee, and others started the Redesigning Legal Speaker Series.  The series provides “a forum to learn about and discuss the regulatory changes underway, the challenges they face, and the opportunities they provide.”  To date, the series has included:

So far, the series has been terrific.  The seminars provide an easy introduction to the reregulation discussion.  Next week the series risks jumping the shark: the organizers decided to include me on the panel tasked with discussing Lawyer UPL: Has it Jumped the SharkAnyhow, I intend to use the series as a road map to drive discussion in Vermont.

For now, practicing lawyers might be wondering “Mike, consumer protection and access to legal services are great, but what’s in it for me?”

Good question.  Here’s my answer.

Arizona was the first state to repeal the ethical prohibition on nonlawyer ownership.  In a recent edition of GPSolo Magazine, Arizona Supreme Court Justice Anne Zimmer shared Regulatory Reform: What’s in it for me?  It’s worth a read. As is an article that ran in the same issue.  Andrew Arruda’s Let’s Stop Cutting Off Our Noses: How Reregulation Benefits Lawyers.

In closing, today’s post is but a (re)-opening salvo.  This time, I’m not going to give up.

Stay tuned.