The Ethics and Future of Practicing Law Remotely

“The Ethics and Future of Practicing Law Remotely,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Travis Hayes, ACTEC Fellow from Naples, Florida. In 2020, the COVID pandemic caused many industries to shift to remote work, including the law profession. According to a poll conducted by the American Bar Association, 87% of lawyers reported that their firm allows remote work.

So, what should lawyers and law firms keep in mind as individuals continue to practice remotely? ACTEC Fellows Lora Brown of Seattle, Washington, and Bob Temmerman of Reno, Nevada, join us today to discuss this topic and share best practices. Welcome, Lora and Bob.

Introduction to Lawyers Working Remotely

Bob Temmerman: Hi there, Lora, and welcome friends and colleagues. You know, it was the pandemic that did teach us that we could work remotely in the legal practice. But I was also a little bit different in that I was also looking at a time in my life when I might want to retire and where I might want to work from.

So, although my office is located in Silicon Valley, my wife and I moved to Reno, Nevada, about two years ago. And I have been practicing remotely in a different jurisdiction from where I’m licensed. It’s a quality-of-life issue for me. I like being outdoors and hiking, but I wanted to make sure that the ethics of what I was doing was still appropriate. Lora, how about your practice?

Lora Brown: Thanks, Bob. Yeah, I started working from my home before COVID, basically for quality-of-life issues because I was spending too much time commuting, primarily. And finding that I could just consolidate my client meetings to a few days a week, I didn’t have to go downtown. And then, as we all found out during COVID, I found out you could actually do this from home or anywhere else. So, my practice is more of a nomadic one. I do work downtown once a week, but I work primarily from my house or, of course, when we’re traveling, as many of us do, to conferences or on vacation. So yes, we’re talking about how to make sure we don’t run into trouble if you decide to engage in a hybrid practice or a purely virtual practice.

Ethical Duties of Working Remote

And for attorneys, there are of course, two issues we have to worry about. If we’re licensed in a state, we have the rules of professional conduct that tell us how we must engage ourselves. And if we’re in a state in which we are not licensed to practice law, then we’re not actually lawyers there, but we have to worry about the Uniform Practice of Law Rules. And we’re going to talk about those separately.

Duty of Confidentiality

Bob Temmerman: And, you know, we can start out with, can you work remotely? Well, the short answer is, absolutely yes, you are allowed to work remotely, ethically. ABA Opinion 498 governs that. But you still have the same duties and responsibilities that you would have if you weren’t working remotely, such as confidentiality.

Let me just mention, you know, we must still maintain client confidentiality any time we’re working remotely. And that means you should have a separate area of your home if you’re working out of your home that is virtually soundproof, so my wife can’t hear me down the hall. I’ve actually installed aircraft insulation on my doors, and I put in some soundproofing in the office just to help maintain that confidentiality. What about our duty of communication, Lora?

Duty of Supervision of Staff

Lora Brown: Yeah, but I was going to also mention we have a duty of supervision for our staff, too, who might be working remotely. And making sure that we engage them in the same conversations about who’s in the room when you’re on the phone with a client or something. Because supervision is also an ethical responsibility.

Duty of Communication

But communication was not much different from when we were in the office. I think the difference is if you’re working Tuesday, Wednesday, and Thursday, and you’ve got a client calling you Thursday evening, they should know you’re not going to respond to them until Tuesday. Whether that’s an out-of-office reply saying, “I don’t work on Fridays and Mondays.” Or in your email responses or in your voicemail. Make sure clients know when to expect to hear back from you.

The other things, again, are the same as before COVID. Avoid creating attorney-client privilege or relationships with non-clients. So whether that’s, if someone emails you, make sure your email system says, “Unless we’ve signed an engagement letter, you’re not my client.”

So, the rules aren’t much different than they were before COVID, but I think it’s important to realize that if you’re working more casually, to remind yourself about those more formal responsibilities.

Duty of Competence

Bob Temmerman: Sure. And the same goes for your duty of competence. The remote aspect of your duty of competence also involves technology. You know, you’re using Zoom meetings with clients or Teams with clients, make sure you have cutting-edge technology to facilitate those meetings. And the ABA and California issued a formal ethics opinion recently, in the last year, that competence also includes the “mental, emotional, and physical ability reasonably necessary for the performance of legal services.”

When you think about it, disasters such as the pandemic, hurricanes, or wildfires, can have a huge financial impact on the attorney, and that cannot interfere with your duty to your clients. You still have the duty to render competent legal services, and it is not excused by a wildfire. It is not excused by a hurricane. It’s not excused. Your remote practice does not alter your ethical duties.

Rule of Diligence

Lora Brown: Exactly. I think we could even say your emotional state might be enhanced, however, from a hybrid practice. So that’s been my experience. There’s also the rule of diligence. Of course, we all must be zealous advocates for our clients, but also, I think it’s important that if you’re working at home with your shorts and flip-flops on, if you’ve got a client meeting, I try to dress appropriately from the waist up, if I’ve got a court hearing I make sure my dog isn’t going to be barking.

In Washington- or at least in King County- our court hearings and the probate arena are all still on Zoom, and so I want to make sure I’m in an appropriate location, I don’t have stuff going on behind me, I use my blur and all that. I think we must make sure we’re still holding up the decorum as well as being diligent and representing our clients professionally. Even if we’re working from the beach.

Jurisdiction When Working Remotely

Bob Temmerman: So that brings us to not just remote work, but what if your remote work is your vacation home in a different jurisdiction? In my case, as Travis introduced us, I now live in Reno, Nevada. I am not licensed in Nevada. I’m only licensed in California. So, the next part of our discussion is, can you live in a different state where you’re not licensed and still practice law remotely for the clients of the jurisdiction where you are licensed? Lora?

Lora Brown: And I think, again, like the earlier question, the short answer is yes, and that’s good news. There are a lot of state opinions talking about if I’m practicing outside the state of Washington, whether I am allowed to do that. And most of the states– a lot of states, I shouldn’t say all of them, but many of the states have issued advisory opinions on that.

The ABA also has a rule, and we’ll talk a little bit more about that, but it does say that you can practice outside your state in which you’re licensed, so in a host jurisdiction, but you must make sure you’re not establishing a law office there if you are not licensed in the host state.

Bob Temmerman: The Model Rules of Professional Conduct, which have been adopted in every jurisdiction except California, has rule 5.5 and specifically, it says, “A lawyer who is not admitted in a jurisdiction may not establish an office or other systematic and continuous presence in that jurisdiction for the practice of law.” So, you think, “Well, wait a second. I have an office in Nevada, and have I established an office? Or do I have a continuous presence in Nevada?”

And Model Rule 5.5, the second part of it says, “And I cannot hold out to the public or otherwise represent that the lawyer is admitted to practice law in that jurisdiction.” So that’s where I feel that I am not violating that rule of professional conduct because I am not holding out to the public, the citizens of the state of Nevada, that I am licensed in that jurisdiction.

Formal ethics opinion 495 says, “A local office is not established within the meaning of the rule by a lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction.” So, I don’t have a business card with my Reno address on it, I don’t have letterhead with the Reno address on it, our website says I’m a California licensed attorney. In other words, everything I do as far as the public is concerned represents that I am only licensed to practice in California for my California clients.

So, Lora, how else can we avoid this continuous and systematic presence that the Model Rule 5.5 discusses?

Lora Brown: Well, I think you’re right, Bob, that you can’t do the things that would obviously look like you’re practicing law in Reno. Hang a sign outside your door saying, “Hey, come on in and see Bob’s law firm.” Don’t have your business cards with your local address. You may have your mail from your California office sent to you or scanned and emailed to you, but generally, you wouldn’t use a mailing address in Reno for your clients.

You also could consider, if you wanted to expand your practice, getting licensed in Nevada, of course. And many states have reciprocity now, but you know, for those of us who aren’t looking to move to another jurisdiction and create more work for ourselves- because Bob, I know you have enough work- that’s still a possibility. If you’re worried about wanting to practice or doing practice, practicing inside your new residence, you might think about getting admitted in the jurisdiction in which you’re now living.

Bob Temmerman: No, thank you. I have enough to do, I want to spend more time hiking the trails than I do practicing law.

So now that we know that you can practice, you should absolutely look up the rules both in the jurisdiction where you’re located, as well as the ethical rules in the jurisdiction where you’re licensed. Because almost all jurisdictions have some sort of rule where they’ve addressed this issue of remote practice.

Practical Issues and Considerations of Practicing the Law Remotely

In addition to remote practice, we have other practical issues that we almost always have to at least think about when you are practicing remotely. One of those issues might be getting a business license. Do I need to get a business license in Reno, Nevada, because I have an office there even though I don’t service any Nevada citizens or clients? I have chosen not to get a business license, to be honest, I haven’t even looked into it, but I don’t think that just because I haven’t looked into it, it doesn’t mean that you shouldn’t look into it as far as any local city, county, or state requirements.

As far as income taxes, yes, I’m in a state now, I’m residing in a state that doesn’t have any income tax. California has the highest income tax in the nation. Unfortunately, because it is California-sourced income, I am still paying California taxes on the income generated by my practice. Yes, there are ways maybe around that. I’m not about to try and avoid the Franchise Tax Board of California.

And then, finally, if you do have a virtual office in a separate jurisdiction- Lora said this best- invest in technology. Get the best printers out there. Get better screens. Have two, maybe three, screens. Make sure you’re working, if you have an IT person, with your technology person in your firm to protect the confidentiality of your cloud-based file system and things of that nature.

But the bottom line, yes, most of us will at least work remotely some time in our life. If you’re younger than I am, you’re probably doing it a lot. But it also allows you to continue to have a practice and to live in a jurisdiction or in an area of your state that has just a different quality of life. I know when I flew down to the Bay Area this weekend, I was stressed by the traffic, I was stressed by the craziness of the drivers that I don’t see. So bottom line, yes, you can and should perhaps consider practicing remotely on a more full-time basis. Lora, any closing comments?

Lora Brown: No, I agree, Bob. And the other thing I did right at the beginning of COVID, I will say if you’re going to try and work hybrid or remotely is get everything, all the paper out of your life. Get as much automated as you can, billing, and also files electronically. That’s my one biggest tip for the day.

Bob Temmerman: Very good. And if you decide to do it, go for it.

Lora Brown: Exactly. Thanks very much.

Travis Hayes: Thank you, Lora and Bob, for enlightening us on the future of practicing law remotely and the ethics involved with working outside of the office.

Additional Resources:

• Moving Your Firm to the Cloud – podcast Dec (2022)
• Technology Recommendations – podcasts by topics
• The ACTEC Commentaries on the Model Rules of Professional Conduct

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