Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Pennsylvania Lawyers Can Ethically Practice Remotely From Out-Of-State

In March of last year, as we faced lock downs and the newfound threat of COVID-19, remote work became a sudden and unexpected reality. Law firms shut their doors and sent everyone home, and the work-from-home revolution began out of necessity, not choice.

As lawyers tried to adapt to the “new normal,” they encountered ethical quandaries when transitioning their dispersed workforces to the cloud-based technologies that would facilitate remote working. Because working-from-home was not commonplace prior to the pandemic, there wasn’t much ethical guidance available regarding technology use that lawyers could turn to.

Fortunately, on April 10, 2020, the Pennsylvania Bar stepped up to the plate and issued Formal Opinion 2020-300. In that opinion, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility provided guidance on how lawyers and their staff can ethically provide legal services while working remotely.

Since that time, as lawyers have continued to work from locations both inside and outside of the jurisdictions in which they’re licensed, another ethical issue has arisen: whether an attorney working remotely long term from a jurisdiction in which they’re unlicensed constitutes the unauthorized practice of law. The Florida Bar Association, D.C. Bar Association, and the American Bar Association have already addressed this issue, and now the Pennsylvania Bar Association, in conjunction with the Philadelphia Bar Association, have joined their ranks by issuing Joint Formal Opinion 2021-100.

At issue in this opinion is whether it is ethical for a lawyer licensed in Pennsylvania to work remotely from another jurisdiction in which the lawyer is not licensed. The Committee summed up the situation leading to the consideration of this issue and the ethical dilemma presented as follows: “The shift to a predominantly remote-based practice model has raised concerns whether a Pennsylvania lawyer practicing law from a physical location outside of Pennsylvania engages in the unauthorized practice of law even though the attorney’s practice is limited to practicing Pennsylvania law for clients in Pennsylvania.”

The Joint Committee acknowledged that the American Bar Association had previously addressed this issue in ABA Formal Opinion 495 and had concluded that “(t)he purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law…(and) is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”

In reaching its conclusion, the Joint Committee adopted the ABA committee’s rationale and concluded that Pennsylvania lawyers could ethically work remotely from a jurisdiction in which they were not licensed as long as there are no statutes, rules, opinions or case law of that jurisdiction in place that would prohibit them from doing so. The Joint Committee determined that this type of remote work is permissible but “lawyers may not hold themselves out as being licensed to practice in the local jurisdiction and may not advertise or otherwise hold themselves out as having an office in the local jurisdiction, or provide or offer to provide legal services in the local jurisdiction, the fact that they are physically located there does not bar them from working remotely for the same clients.”

This opinion, and the ones from the bar associations that preceded it, are evidence of a greater trend: the pandemic has ushered in a new normal for the legal profession. Remote working, and the cloud-based technology needed to enable it, are here to stay. Practicing law from any location is becoming an accepted and commonplace practice. So if you’re still on the fence regarding the use of cloud computing software in your law firm, what are you waiting for? The tides have turned, and there’s no better time than now to make the transition to working remotely using cloud-based technology.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.