ABA Addresses Remote Practice and Unlicensed Practice of Law
By Henry Lee Paul
reprinted from LCBA’s RES GESTAE magazine
The reality of life in this time of COVID is that the remote practice of law has established itself as a presence that will not disappear with the pandemic. Although enabled by technology, it has been advanced by requirements of public safety.
The ABA has addressed the issue of lawyers who practice in a state in which they do not live. In the past, this would typically be considered unlicensed practice of law (UPL) in the jurisdiction of domicile. Florida has historically been a particularly fierce defender of restrictions against UPL. However, as discussed in my January 2021 article, The Florida Supreme Court is considering whether to revise the long-standing restrictions against UPL in Florida.
ABA Formal Opinion 495 instructs that remote practice from a jurisdiction in which a lawyer is not licensed is accept- able, provided certain conditions are met. As an obvious threshold matter, such a remote practice must not be considered UPL in the jurisdiction of domicile. How- ever, the opinion advises that the policy concerns against UPL should not restrict such practice to lawyers living outside the jurisdiction of licensure “. . . if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction.”
It remains to be seen if The Florida Supreme Court will adopt the policy announced by the ABA, however they have this exact issue before them. On August 19, 2020, The Florida Bar filed The Florida Bar Re: Advisory Opinion – Out of State Attorney Working Remotely From Florida Home, SC20-1220, in which The Standing Committee on the Unlicensed Practice of Law for The Florida Bar issued a proposed advisory opinion that was consistent with the policy articulated in ABA 495.
This advisory opinion involved circum- stances in which the petitioner, a New Jersey lawyer, retired from his career practice in New Jersey. He was formerly in-house counsel for a major corporation dealing with matters before the United States Patent and Trademark Office. He subsequently associated with a New Jersey firm, sold his New Jersey home and moved to Naples, Florida. All communication with clients is now through his New Jersey office, with no indicia of a presence in Florida. His computer server is located in New Jersey. His practice involves no issues of Florida Law. The petitioner asserted that he virtually practices law in New Jersey from his Florida home.
The proposed advisory opinion, which must be approved by The Florida Supreme Court to be effective, is currently under consideration by the Court. It was submitted for review, without oral argument, on October 22, 2020, after a period of public comment. The forthcoming decision on the proposed advisory opinion is one more reason that 2021 promises to be a watershed year for UPL policy in Florida.
Henry Lee Paul is former Bar Counsel who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.