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.
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.
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. 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.
 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)
 Mom – this is a HYPOTHETICAL for learning purposes only.