SCHOOLED IN ETHICS By: Alex B. Long Williford Gragg Distinguished Professor of Law University of Tennessee College of Law
REMOTE PRACTICE AND THE UNAUTHORIZED PRACTICE OF LAW Hypothetical
Rule 5.5 simply by virtue of being physically present in Georgia. In such cases, the lawyer’s presence in the local jurisdiction is merely incidental.2 At least two other state ethics committees have reached the same conclusion.3
Alice is licensed only in the State of Tennessee, but she lives in Savannah, Georgia. She has a physical law office in Tennessee but does most of her work in Savannah using a personal computer securely connected to the firm’s computer network. She does not hold herself out as licensed in Georgia, nor does she represent Georgia clients. She wishes to provide legal advice about Tennessee law from her Savannah home to clients located in Tennessee. Is she engaged in the unauthorized practice of law? What other ethical concerns might arise from her practice.
Competence and Confidentiality Concerns
COVID-19 forced lawyers to use technology in ways most never imagined. The pandemic also revealed that the practice of law does not necessarily have to always take place within a brick-and-mortar office or courtroom. More generally, employers of all kinds are realizing that it may be that some work does not involve a 40 hour a week physical presence in the office and that some work can be done remotely. Several recent ethics opinions provide guidance lawyers on the subject of practicing law remotely. Unauthorized Practice of Law Concerns One problem for lawyers who wish to practice remotely – either on an ongoing or temporary basis – has always been the potential for such practice to amount to the unauthorized practice of law. Like Alice in the hypothetical, a lawyer may wish to permanently relocate to another jurisdiction. Or a lawyer may wish to practice virtually in another jurisdiction while on vacation or while working on another matter. TRPC Rule 5.5(b) prohibits a lawyer who is not licensed in Tennessee from establishing an office or other systematic and continuous presence in the state for the practice of law. A recent advisory ethics opinion from Florida concludes that a remote practice like the one that Alice from the hypothetical seeks to engage in would not amount to the unauthorized practice of law in the state where the lawyer is physically located. According to the opinion, the facts do not implicate the unlicensed practice of law in Georgia. The purpose of the unauthorized practice of law rules is the protection of the public. Since (in this hypothetical) Alice is not providing legal services to Georgia citizens, no Georgia citizens are put at risk. So, Georgia would have no interest regulating Alice’s practice, provided she does not hold herself out to Georgia citizens as being available to provide legal services to them.1 The Florida opinion largely tracks a December 2020 ABA opinion on the same subject. According to ABA Formal Opinion 495, a lawyer in Alice’s situation does not have a systematic presence for purposes of
The other issues related to this type of remote practice involve the ability of the lawyer practicing remotely to provide competent representation and to maintain client confidentiality. ABA Formal Opinion 498 discusses the ethical concerns raised by a virtual practice. The opinion notes that part of a lawyer’s duty of competence involves keeping abreast of the benefits and risks associated with relevant technology. The opinion identifies maintaining the confidentiality of client information as the primary area of concern. Accordingly, the opinion identifies several issues related to virtual practice that lawyers need to consider. These include reviewing the terms of service associated with hardware devices and software systems to ensure that client confidentiality is protected; ensuring reliable access to client records; and ensuring that video meeting platforms and virtual document and data exchange platforms have adequate security measures in place. Tennessee Law To date, the Tennessee Board of Professional Responsibility has not opined on the issue of remote practice and the unauthorized practice of law. But the logic of the Florida and ABA opinions on the subject is undeniable, so it is difficult to see why the BPR would reach a different conclusion. That said, Tennessee lawyers engaged in remote practice need to stay within the boundaries identified in the opinions. For example, the lawyer who is licensed in Tennessee, lives in Georgia, and provides legal advice via email to a client in California on California law would not necessarily be protected by these opinions and should consult TRP Rule 5.5(b) for further guidance. Tennessee lawyers need to also be mindful of their ethical obligations when it comes to the use of technology. The last Tennessee ethics opinion on the issue of technology in the practice of law was from 2015.4 But the ABA’s 2020 opinion on the subject provides useful guidance on the issue of technology in the practice of law, even outside the specific context of virtual practice.
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See The Florida Bar Re: Advisory Opinion – Out-of-State Attorney Working Remotely From Florida Home (May 20, 2021), https://www.floridasupremecourt.org/content/ download/743446/opinion/sc20-1220.pdf. See ABA Formal Opinion 495, Lawyers Working Remotely (Dec. 16, 2020), https:// www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ aba-formal-opinion-495.pdf. See Debra Cassens Weiss, Remote Practice in Home from Florida Isn’t Unauthorized Practice, Advisory Opinion Says, ABA Journal, May 24, 2021. See TN Formal Ethics Opinion 2015-F-159.
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. August 2021
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