Stay on the Right Side of the ABA’s Remote Work Rule

April 5, 2021

According to MyCase data, over 80% of law firms surveyed continue to work remotely at least some of the time. For many lawyers, working remotely means practicing law from a home office in the same city where their firm is based. But some attorneys find themselves in the unique position of working from second homes in a state where they are not licensed to practice law. Since this situation is unlikely to change anytime soon, the American Bar Association (ABA) has updated its guidance on keeping the arrangement ethical.

Formal Opinion 495 affects attorneys who relocated to ride out the pandemic in another state as well as attorneys living in border communities. For example, the opinion impacts attorneys who work remotely from homes in Maryland and Virginia but who are licensed to practice in Washington D.C. Lawyers who work remotely from a home in another state where the lawyer is not licensed may still practice law under certain conditions, as long as the local jurisdiction would not deem their activity an unauthorized practice of law. Attorneys working this way must meet the following guidelines:

-They cannot establish an official office or other systematic presence in that local jurisdiction. This means no listing your local contact information on websites, letterhead, business cards or advertising materials.

-They cannot “hold out” a presence or availability to perform legal services in that local jurisdiction.

-They cannot actually provide legal services for matters in that local jurisdiction, unless otherwise authorized.

It’s important to remember that although ABA opinions are persuasive, they are not binding. Each state maintains its own rules for out-of-state practice, and attorneys should review them alongside the ABA guidelines before deciding to relocate. For instance, the District of Columbia has granted permission to out-of-state lawyers to work remotely from the District. But many states lack rules as specific as the one in DC; in such cases, the ABA’s opinion provides useful clarification on what has been a rather cloudy issue.

Even as the country moves past the pandemic, the legal community will still need these guidelines on remote work. Loeb Leadership conducted a study finding that 67% of lawyers and staff want to continue to work remotely once it’s safe to return to offices, even if it’s just a few days a week.

The legal workplace experienced a major transformation over the past year. New ways of practicing law are changing the way firms operate, and shaping the formation of new guidelines that will have an impact on firms for years to come.