QUESTION:
When cities and states began to issue shelter at home orders in March of 2020, you temporarily closed the office of your Missouri law firm and all attorneys and staff began working remotely.
You and your family moved into your summer home on the gulf coast in Alabama at that time, and you have been practicing law from that address since March. Because your office was closed and you wanted to ensure all law firm mail was promptly reviewed and appropriately distributed, you updated the law firm address on your website and letterhead to be the address of your second home in Alabama. You are not licensed to practice law in Alabama, nor is any other attorney in your firm.
Listing an Alabama address for your law firm:
A. Is permissible because the majority of the members of your firm are physically in Missouri.
B. Is permissible because you are only in Alabama temporarily.
C. Is impermissible because the Alabama Supreme Court published a disciplinary opinion holding that this conduct is the unauthorized practice of law in Alabama.
D. Is impermissible because listing an Alabama address for the law firm improperly establishes a local presence in a state where no members of the firm are licensed.
CORRECT ANSWER: D.
Is impermissible because listing an Alabama address for the law firm improperly establishes a local presence in a state where no members of the firm are licensed.
According to a recent American Bar Association Ethics Opinion, listing contact information for a location where no member of the firm is licensed on websites, letterhead, business cards, advertising or other communications about the firm improperly establishes a local office or local presence under Model Rule 5.5: Unauthorized Practice of Law. See ABA Formal Op. 495, December 16, 2020. The opinion points out that Model Rule 5.5(b)(1) prohibits a lawyer from “establish[ing] an office or other systematic and continuous presence in [the] jurisdiction [in which the lawyer is not licensed] for the practice of law.”
While the opinion does grant significant leeway to attorneys who are practicing law remotely, the opinion draws the line at establishing a presence in the jurisdiction by publicizing contact information tied to that jurisdiction. In analyzing Model Rule 5.5, the opinion states that a law firm is not “established” within the meaning of the rule if a lawyer conducts solely Missouri work for Missouri clients simply because the lawyer is physically located in another state when doing so. In this situation, the lawyer’s physical presence in the local jurisdiction is “incidental.” However, if that lawyer includes contact information within that jurisdiction on any law firm letterhead or publications, doing so crosses a line into “establishing” a systematic and continuous presence in the local jurisdiction.
Even with the publication of this opinion, lawyers should still be cautious before a long-term temporary move to a jurisdiction where they are not licensed with intent to still practice remotely from that jurisdiction. Such a move would be ethically permissible only so long as the jurisdiction to which the attorney moves has not determined that doing so would be the unauthorized practice of law within that jurisdiction. Attorneys should carefully review the ethics opinions, rules of professional conduct, and other relevant laws in any jurisdiction before engaging in law practice within that jurisdiction’s borders. It might be wise to seek out assurance from the state’s local ethics authority or an ethics attorney licensed in that jurisdiction before moving.
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