Remote depositions and the unauthorized practice of law Esquire Deposition Solutions, LLC

Remote depositions and the unauthorized practice of law  Esquire Deposition Solutions, LLC

Remote court hearings and remote depositions are commonplace today. In fact, some law firms hire attorneys with the expectation that they may never work in the firm’s physical office and never appear in courtrooms located in their jurisdictions.

However, remote practice does not always fit well with the ethical obligations of the legal profession. We have already written extensively about a lawyer’s ethical obligation to provide reasonable security for confidential client information when working remotely (here, here, and here).

But there are other ethical risks inherent in remote work. One such risk is the risk that an attorney licensed to practice law in one jurisdiction will engage in the unauthorized practice of law when providing legal services remotely while physically present in another jurisdiction.

For example, is it permissible for an attorney licensed in New York to ethically provide legal services from a home office across the river in New Jersey? May a California licensed attorney provide legal services from a vacation home in Montana, or a beach house in Florida? May an attorney licensed in Illinois defend a deposition remotely while physically located outside that state? The legal profession’s embrace of remote working arrangements means that these scenarios are not rare, or one-off instances, but are instead a permanent feature of modern law practice.

The American Bar Association Model Rules of Professional Conduct, Rule 5.5 (Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law), states in part:

  1. A lawyer may not practice law in a judicial body in violation of the law of the legal profession in that body, or assist others in doing so.
  2. A lawyer who is not permitted to practice law in this state may not:
  3. Except as permitted by these Rules or any other law, establish an office or other systematic and continuing presence in such jurisdiction for the practice of law; or
  4. Advertise to the public or otherwise represent the attorney that he or she is admitted to practice law in this jurisdiction.

“In ABA Formal Opinion No. 495, the ABA advised that working remotely from an unlicensed jurisdiction does not violate Rule 5.5 if attorneys do not take additional steps to prove they are licensed in that jurisdiction (e.g. , via official paper, business cards, and other websites (sign of the lawyer’s presence).”

With respect to remote practice, the important inquiries raised by Rule 5.5(b) are whether a lawyer practicing law remotely has “establish[ed]an office or other systematic and continuing presence” in the jurisdiction in which he is physically present or present. To explain to the public that he or she is licensed to practice the profession in that jurisdiction.

Then there is Rule 5.5(c), which allows an attorney to provide legal services across state lines “on a temporary basis” if the services are reasonably related to the attorney’s practice in the jurisdiction in which the attorney is permitted to practice. Unfortunately, it would be a stretch to describe many remote work arrangements as “on a temporary basis.”

These ethical gray areas recently prompted the American Bar Association (ABA) and other state regulators to revise rules to allow remote legal work, also known as “virtual law practice.” In ABA Formal Opinion No. 495, the ABA advised that working remotely from an unlicensed jurisdiction does not violate Rule 5.5 if attorneys do not take additional steps to prove that they are licensed in that jurisdiction (e.g., Via official paper, business cards, websites and other indicators (in the presence of the lawyer).

The ABA followed up this opinion with another opinion that specifically addresses the practice of virtual law: ABA Formal Opinion 498 (Virtual Practice), which sets forth guidelines for the practice of law online and across jurisdictional boundaries.

Many state regulatory agencies have approved remote work across jurisdictional lines. In Maine, the Maine Commission on Professional Ethics has advised that “when a lawyer’s practice is in another state and where the lawyer is engaged in the affairs of the office remotely, we conclude that the lawyer is not engaged in the unauthorized practice of law.”

The Utah Ethics Advisory Commission concluded that state ethics obligations “do not prevent an out-of-state attorney from representing clients from the state in which the attorney is licensed even if the out-of-state attorney does so from his or her own location in Utah.”

In Virginia, the state Supreme Court has ruled that “an attorney who is not licensed in Virginia may practice from a location in Virginia on a continuous and systematic basis, so long as such practice is limited exclusively by federal and/or Virginia state law.” Jurisdiction for an attorney’s license, regardless of why it is in Virginia.

In Ohio, the Ohio Board of Professional Conduct issued Opinion 2022-13, which explains how out-of-state attorneys can ethically receive depositions in Ohio without violating ethical rules prohibiting the unauthorized practice of law. Notably, the Ohio opinion emphasizes the fact that the attorney making the deposition is considered to be engaged in the practice of law.

Recently, the states of Vermont, Florida, and Washington added commentary to their versions of Rule 5.5 that outlines ways in which attorneys can ethically provide legal services remotely and across state lines—without engaging in the unauthorized practice of law. In Massachusetts, the public comment period closed on November 3 on a proposal to revise that state’s version of Rule 5.5 to clarify that lawyers admitted in another jurisdiction but not admitted to practice in Massachusetts do not engage in the unauthorized practice of law if they provide legal services While located in Massachusetts but do not (a) advertise or pretend to have an office in Massachusetts and (b) do not provide or hold themselves out as authorized to provide legal services in Massachusetts.

Several other states are considering similar proposals. While it seems safe to say, on the basis of all this regulatory activity blessing and encouraging remote work, that remote depositions across state lines will not typically raise ethical issues, the safest course of action is for remote litigants to consult their state’s ethics rules The jurisdiction in which it was licensed And Ethical rules within the jurisdiction of the forum. Both jurisdictions may have rules governing how such a remote deposit can be conducted and by whom it can be done ethically.

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