Working Remotely Challenges the Idea of Practicing Within a Given Jurisdiction

Working Remotely Challenges the Idea of Practicing Within a Given Jurisdiction

Covid-19 has affected every aspect of our lives, including our working lives. Suddenly, firms are advertising remote legal positions on job board sites around the country. An attorney licensed to work in New York, lives and works remotely in his home in New Jersey.

This doesn’t just involve those whose work and home lives are in close proximity but in separate jurisdictions. Attorneys are looking to work far outside their normal jurisdiction. Remote work makes this possible. However, attorneys are bound by ethical standards and some of those standards are relevant to remote working. In particular, lawyers are licensed or authorized to work in a particular state. They are not licensed to work outside that state. Doing so may open them to a charge of the unauthorized practice of law, which can lead to sanctions or possible disbarment.

The Movement Toward Loosening Restrictions

Even before the onset of Covid-19, attorneys had been calling for reform of what many view as protectionist rules that prohibit an attorney admitted in one state from practicing in another. Computers, internet, and conferencing platforms all make it possible to do much of the work involved in an attorney’s work life from any location. With the realities of Covid in the workplace, remote working has become the norm for many attorneys. As a result, more attorneys are now working outside their jurisdiction.

ABA Model Rule 5.5

The American Bar Association’s (ABA) Model Rule 5.5 addresses practicing across jurisdictional lines. Most states have adopted Rule 5.5 in some form.

Rule 5.5 prohibits any attorney from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Nor may an attorney assist another in doing so. Specifically, the Rule states that an attorney may not establish an office or other systematic and continuous presence in that jurisdiction for the practice of law, or hold themselves out to the public as being admitted to practice law in that jurisdiction.

The Rule also carves out exceptions to this general rule. It is acceptable for an attorney to work in another jurisdiction in which the attorney is not licensed provided the employment is temporary. However, the attorney may not have been disbarred or suspended in any jurisdiction. In addition, the attorney must be working in association with a duly licensed attorney in that jurisdiction.

The Rule also provides another safe harbor provision. It is acceptable for an attorney in good standing within their home state to work temporarily, providing legal services that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

So, when does work stop being temporary and cross into persistent practice? While there is no bright line, the work may not be so long that it rises to the level of systematic and continuous presence in that jurisdiction. This standard is one that is open to interpretation.

States Are Beginning to Address the Problem

Seeing the possibility of remote working as a necessity for some time to come, states are beginning to address the jurisdictional issue. Some states already allow lawyers to practice across state lines, Minnesota, North Carolina, Arizona, and New Hampshire among them. These states allow out-of-state lawyers to practice as long that they disclose that they’re not licensed to practice in that state.

Washington D.C has also relaxed its rules during the pandemic. The DC Court of Appeals Committee on Unauthorized Practice of Law has opined that the necessity to work remotely due to Cvid-19 fits within the temporary practice exception outlined in Rule 5.5. New York has allowed a similar exception.

Florida is considering making the change permanently. A Florida state bar advisory opinion has stated that an out of state attorney is not engaged in the unauthorized practice of law if solely practicing federal intellectual property matters, which was his area of expertise as long as the attorney was not practicing Florida law. While this will have to be confirmed with Florida Supreme Court action, it represents movement toward an ethical approach to serving client needs.

What Will Happen After The Pandemic Ends?

It is uncertain whether the rules regarding crossing jurisdictional boundaries will continue to relax after the pandemic ends. The trend is likely to continue into the near future. But as one year stretches into two, the question of what is “temporary” will undoubtedly have to be revisited.

 

 

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Law School Deans Urge State Bars to Waive Bar Exam Amidst Pandemic

Law School Deans Urge State Bars to Waive Bar Exam Amidst Pandemic

Law school deans join recent law school graduates, the American Bar Association, and others in states across the country asking for states to take steps to allow law school graduates to practice law without taking the bar. Many states have postponed or even canceled bar exams for recent law school graduates. These individuals cannot practice law until they pass the bar exam and are admitted to practice in that state.

STATES CONTINUE TO ADDRESS THE QUESTION OF BAR EXAMS

Unfortunately for law students, many states keep changing their policies for the bar examination. Some states held in-person exams in July, while other states rescheduled the July exam. Other states have decided to hold remote bar exams instead of in-person exams.

The National Conference of Bar Examiners (NCBE) has a list of the announcements for each state on its website. 

Students in states that have postponed the bar exam are under a lot of pressure. They want to go to work, but they cannot practice law. 

A few states have adopted policies that allow law students to bypass the bar exam. Diploma privilege allows a person with a Juris Doctorate to obtain a license to practice law without taking the bar exam. A few states have adopted this option for dealing with the bar exam.

Other states allow law school graduates to petition to practice under the supervision of an attorney. In some states, graduates can apply to engage in the limited practice of law. There does not seem to be a perfect answer to the situation.

As the courts and state bars continue to struggle to find a solution to the problem, the public, as well as law students, may suffer from the delay in admitting new attorneys to practice.

LEGAL NEEDS OF THE PUBLIC

Courts and states attempt to balance the risk of COVID-19 with the needs of law school graduates and the public. While there is a push to protect the public interest by ensuring that lawyers have a minimum level of competency, there is also a public interest in having more attorneys admitted to the bar.

With the economic hardships caused by COVID-19, there are many more individuals seeking legal advice regarding financial matters. People need assistance with legal matters, including bankruptcy, personal injury claims, foreclosure, eviction, debt collection, and contract law.

Also, low-income individuals are seeking help as they apply for government benefits, such as Social Security, workers’ compensation, and Medicaid. Since many new attorneys enter areas related to public service, it can be in the public interest to admit attorneys to practice law as soon as possible. 

A DIFFICULT DECISION FOR ALL PARTIES 

Deciding how to handle state bar examinations and admissions to practice law in the era of COVID-19 is challenging. Courts and State Bar Associations must balance the needs of graduating law students with the public interest. Many states include ethics questions on the bar exams, in addition to questions about legal theories, laws, and rules.

The professional conduct for attorneys is closely monitored. Attorneys have a high duty of care to their clients, the public, and the courts. Violating the rules of professional conduct and ethics can result in various disciplinary sanctions. 

Allowing attorneys to practice without taking the bar exam could be problematic. Permitting an attorney permanent admission to the bar without measuring competency through a bar exam could put the lawyer’s qualifications into question throughout the attorney’s career. 

Diploma privilege could also be a problem for states that use the Uniform Bar Examination (UBE). UBE states allow applicants to transfer their passing UBE scores to other UBE states. The attorneys can practice law in that state without retaking the bar exam.

However, if an attorney is admitted to practice law under diploma privilege, does that admission transfer to another state that does not permit admission through diploma privilege? Will there be a question about an attorney’s understanding of ethics or basic legal principles because he did not take the bar exam?

COVID-19 AND THE PRACTICE OF LAW

COVID-19 has impacted almost every area of life in the United States. Law firms have had to change how they interact with clients and the courts. Some law firms that made offers of employment to third-year law school students are now dealing with delays in hiring as students wait to take the bar exam.

The debate about the bar exam is likely to continue. Each state must address the question. Unfortunately, it is unlikely that a uniform decision about diploma privileges or other ways to allow law school graduates to practice law until they can take the bar exam is forthcoming.

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