Can a lawyer licensed in another state or country live in Georgia and practice law remotely if the work has no connection to Georgia?

Plain-English summary

The opinion addresses a hypothetical "Domestic Lawyer" or "Foreign Lawyer," as those terms are defined in Georgia Rule 1.0, who is admitted to practice somewhere other than Georgia and who takes up residence in Georgia. Using telephone, email, cloud storage, and videoconferencing, the lawyer practices from Georgia but renders no legal services with any connection to Georgia other than the lawyer's physical location. The narrow question is whether Rule 5.5 is violated.

The Board first concludes that providing such services is not the provision of legal services "in Georgia" within the meaning of Rule 5.5. The Georgia rules do not define "in Georgia," and the hypothetical services do not involve a Georgia client, lawsuit, dispute proceeding, Georgia law, Georgia property, or a Georgia organization. Because the services are not "in Georgia," the limits Rule 5.5 places on out-of-state lawyers providing services in Georgia do not apply.

Even so, Rule 5.5 separately prohibits a lawyer not admitted in Georgia from establishing an office or other "systematic and continuous presence" in the state for the practice of law and from holding out as admitted in Georgia. The purpose of these prohibitions is to keep the public from being misled about the lawyer's licensure. The Board concludes a lawyer can avoid that risk: the lawyer must not affirmatively misrepresent being Georgia-licensed, must practice only remotely, must take reasonable steps so the Georgia location is not generally known (for example, not revealing it in advertisements, letterhead, business cards, or on the internet), and must give an appropriate disclaimer when the lawyer knows or should know a member of the public believes the lawyer is Georgia-licensed.

The opinion frames its conclusion as a safe harbor and marks its limits. It does not address lawyers who provide services "in Georgia" or whose Georgia presence becomes generally known; those lawyers must consult Rule 5.5 and other law. A footnote also flags that whether such practice violates Georgia's unlicensed-practice statute (OCGA § 15-19-51) is a question of law outside the Board's authority.

In practice

Under this opinion, conduct in which a lawyer admitted in another U.S. jurisdiction or a foreign nation lives in Georgia and provides legal services by remote means, on matters with no Georgia connection other than the lawyer's physical location, does not violate Rule 5.5 if the lawyer satisfies three conditions: not holding out as Georgia-licensed, keeping the Georgia location not generally known, and correcting any misunderstanding about licensure.

The opinion holds the safe harbor is conditional and narrow. It does not opine on services that touch Georgia clients, Georgia law, or Georgia property, and it expressly leaves open whether the conduct could implicate Georgia's unlicensed-practice statute, a question of law the Board states it cannot decide.

Common questions

Q: Can a lawyer not licensed in Georgia work from a home in Georgia for out-of-state clients?

A: Yes, under the opinion's conditions. The Board concludes that practicing remotely from Georgia on matters with no Georgia connection is not practicing "in Georgia," so Rule 5.5's limits on in-state practice do not apply, provided the lawyer does not hold out as Georgia-licensed and keeps the location not generally known.

Q: Does living in Georgia create a "systematic and continuous presence" that violates Rule 5.5?

A: Not by itself, under the opinion. The Board reasons that the prohibition exists to prevent public confusion about licensure, and a lawyer who practices only remotely and keeps the Georgia location not generally known has not established a presence "for the practice of law" in Georgia.

Q: What steps does the lawyer have to take?

A: The opinion requires the lawyer not to misrepresent being Georgia-licensed; to practice only remotely; to take reasonable steps so the Georgia location is not generally known, such as keeping it off advertisements, letterhead, business cards, and the internet; and to give a disclaimer when the lawyer knows or should know someone believes the lawyer is Georgia-licensed.

Q: Does this opinion cover Georgia-licensed lawyers working remotely from other states?

A: No. A footnote notes that a Georgia lawyer remains subject to Georgia's disciplinary authority under Rule 8.5(a) wherever the lawyer works, and must ensure remote practice does not violate the law or rules of the jurisdiction the lawyer is working from. The opinion does not resolve that situation.

Background and rules framework

The opinion interprets Georgia Rule of Professional Conduct 5.5 (corresponding to ABA Model Rule 5.5 on the unauthorized and multijurisdictional practice of law), using the definitions of "Domestic Lawyer" and "Foreign Lawyer" in Georgia Rule 1.0(h) and (j). It distinguishes between providing services "in Georgia," which Rule 5.5 limits, and the separate prohibitions in Rule 5.5(b) on establishing an office or systematic and continuous presence and on holding out as admitted. A footnote references Rule 8.5(a) for the converse situation of Georgia lawyers practicing from other states.

The opinion surveys authority from other jurisdictions reaching the same result, including ABA Formal Opinion 495, a Florida Supreme Court advisory opinion (later codified by a comment to Florida's Rule 5.5), Utah Ethics Advisory Committee Opinion 19-03, a joint New Jersey opinion, Virginia LEO 1896, and Wisconsin Formal Ethics Opinion EF-21-02, and notes that the District of Columbia took a more restrictive view.

Citations and references

Rules of Professional Conduct:

• Georgia RPC 5.5 (ABA Model Rule 5.5): unauthorized and multijurisdictional practice of law
• Georgia RPC 1.0(h), (j) (ABA Model Rule 1.0): definitions of "Domestic Lawyer" and "Foreign Lawyer"
• Georgia RPC 8.5(a) (ABA Model Rule 8.5): disciplinary authority

Statutes:

• OCGA § 15-19-51 (Georgia unlicensed-practice statute)

Cases:

• The Florida Bar re Advisory Opinion - Out-of-State Attorney Working Remotely from Florida Home, 318 So. 3d 538 (Fla. 2021)
• In re Amendments to Rule Regulating the Florida Bar 4-5.5, 334 So. 3d 1272 (Fla. 2022)

Other opinions cited:

• ABA Formal Op. 495: lawyers working remotely from a jurisdiction where they are not admitted
• Utah Ethics Advisory Committee Op. 19-03; New Jersey Joint Opinion 59/742; Virginia LEO 1896; Wisconsin Formal Ethics Op. EF-21-02; D.C. Op. 24-20

See also

• ABA Formal Op. 495: Lawyers Working Remotely
• ABA Formal Op. 498: Virtual Practice
• ABA Formal Op. 504: Choice of Law
• Alabama Ethics Op. 2002-02: Affiliation Agreements With Foreign Lawyers

Source

• Landing page: https://www.gabar.org/handbook?rule=rule648

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FORMAL ADVISORY OPINION NO. 22-1 (Proposed FAO No. 21-R1)
Approved on June 11, 2024 Pursuant to Bar Rule 4-403
By Order of the Supreme Court of Georgia
Supreme Court Docket No. S24U0609
(Proposed Formal Advisory Opinion No. 21-R1)

QUESTION PRESENTED:
Under Georgia Rule of Professional Conduct 5.5, may a Domestic Lawyer or a Foreign Lawyer provide legal services by remote means from Georgia while residing in Georgia, when the services have no relationship with Georgia other than the lawyer’s physical location?

SUMMARY ANSWER:
Yes, under certain conditions. A Domestic or Foreign Lawyer residing and working in Georgia may provide legal services by remote means that have no relationship to Georgia other than the lawyer’s physical location if: (a) the lawyer does not hold out or otherwise represent that they are licensed in Georgia; (b) the lawyer takes reasonable steps to ensure that the lawyer’s Georgia location is not generally known; and (c) the lawyer takes reasonable steps to correct any misunderstanding about the lawyer’s licensure. [1]

OPINION:
Under the Georgia Rules of Professional Conduct, a lawyer who is licensed elsewhere but not in Georgia is defined as either a “Domestic Lawyer” or a “Foreign Lawyer.” A “Domestic Lawyer” is “a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.” [2] A “Foreign Lawyer” is “a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.” [3]

The Formal Advisory Opinion Board (“FAOB”) has been asked to provide guidance about a hypothetical Domestic or Foreign Lawyer who has taken up residence in Georgia. Using telephone, email, cloud file storage, videoconferencing, and other technologies, the lawyer practices law from Georgia while residing in Georgia but provides no legal services that have any connection to Georgia other than the lawyer’s physical location. The narrow question for the FAOB is whether Rule 5.5 is violated under these specific circumstances. [4]

Georgia Rule of Professional Conduct 5.5 sets forth the limited circumstances under which a Domestic or Foreign Lawyer may provide legal services “in Georgia.” It permits Domestic Lawyers to provide in Georgia certain services on an ongoing basis for the lawyer’s employer or its organizational affiliates and services that the lawyer is authorized to provide by federal or Georgia law. [5] Foreign Lawyers may provide in Georgia some ongoing services for the lawyer’s employer or its organizational affiliates. [6] Rule 5.5 also permits both Domestic and Foreign Lawyers to provide some legal services in Georgia if the services are performed on a temporary basis. [7]

The Georgia Rules of Professional Conduct do not define what it means to provide legal services “in Georgia.” This Opinion concerns only hypothetical activities that have no connection to Georgia other than the physical location of the Domestic or Foreign Lawyer rendering the service. The hypothetical services do not relate to any Georgia client, lawsuit, or alternative dispute resolution proceeding. They do not involve Georgia law or any property located in Georgia. They do not involve any organization or its affiliates with offices in Georgia. The FAOB concludes that providing such legal services from Georgia is not the provision of legal services “in Georgia” within the meaning of Rule 5.5. [8] The limitations of Rule 5.5 on the circumstances under which Domestic or Foreign Lawyers may provide legal services in Georgia are thus inapplicable to the hypothetical activities addressed in this Opinion.

Even if a Domestic or Foreign Lawyer is not providing legal services “in Georgia,” Rule 5.5 prohibits certain other activities. Domestic or Foreign Lawyers may not, except as authorized by other rules or other law, “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law” or “hold out to the public or otherwise represent that the [Domestic Lawyer or Foreign Lawyer] is admitted to practice law in this jurisdiction.” [9] The purpose of these prohibitions is to prevent the public from being misled about the Domestic or Foreign Lawyer’s licensure. Obviously, an affirmative misrepresentation creates a risk that the public will be misled. So does the establishment of a physical office or other systematic and continuous presence for the practice of law in a state where the lawyer is not licensed. [10] The question for the FAOB therefore is whether a Domestic or Foreign Lawyer who resides in Georgia and renders legal services by remote means from Georgia can take steps to ensure that the public will not be misled about the lawyer’s licensure.

The answer is yes. The Domestic or Foreign Lawyer must not affirmatively misrepresent themselves as licensed in Georgia. The lawyer must practice only remotely and take all other reasonable steps to ensure that the lawyer’s provision of legal services from Georgia is not generally known to the public. For example, the lawyer must not reveal their Georgia location in advertisements, letterhead, business cards, or on the internet. If the lawyer knows or reasonably should know that a member of the public believes that the lawyer is licensed in Georgia, the lawyer must give an appropriate disclaimer. By providing legal services from Georgia under these conditions, even on a continuous basis, the lawyer negates the risk that the public will be confused about the lawyer’s licensure. The hypothetical Domestic or Foreign Lawyer has not therefore established an office or other continuous and systematic presence for the practice of law in Georgia in violation of Rule 5.5.

Other authorities agree. [11] For example, the Supreme Court of Florida approved an advisory opinion that it would be permissible for a lawyer not licensed in Florida to practice federal intellectual property law from his Florida home through his internet connection to his New Jersey law firm, where the lawyer “would have no public presence or profile as an attorney in Florida” and “neither he nor his firm will advertise or otherwise inform the public of his remote work presence in Florida.” [12] That opinion concluded that, under Florida’s version of Rule 5.5, the lawyer “will not be establishing a regular presence in Florida for the practice of law; he will merely be living here.” [13] Since then, the Florida Rules of Professional Conduct have been amended to add a comment to its version of Rule 5.5 that is consistent with the Florida advisory opinion. [14] Similarly, the Utah Ethics Advisory Committee posed and answered this question about Utah’s version of Rule 5.5: “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is ... none.” [15] In New Jersey, a lawyer licensed elsewhere does not establish a continuous and systematic presence for the practice of law if the lawyer only practices out-of-state law and has no “outward manifestation of physical presence, as a lawyer, in New Jersey.” [16]

It is important to highlight the limits of this opinion. We conclude that a Domestic or Foreign Lawyer does not violate Rule 5.5 by providing legal services by remote means from Georgia (but not “in Georgia”) while residing in Georgia, under specific conditions. The lawyer must not misrepresent the lawyer’s lack of Georgia law license. The lawyer also must take reasonable steps to ensure that the Georgia location of the lawyer is not generally known and to correct any misunderstanding of the lawyer’s licensure. For Domestic and Foreign Lawyers who wish to practice from Georgia, this Opinion provides a safe harbor from the limits of Rule 5.5. This Opinion does not purport, however, to provide guidance beyond that. Domestic or Foreign Lawyers who provide services “in Georgia” or whose presence in Georgia becomes generally known must consult Rule 5.5 and other applicable law to determine the propriety of such activities.

1 Apart from the question addressed in this opinion, Domestic and Foreign Lawyers must consider whether practicing while physically residing in Georgia violates Georgia law. Part 14 of the Rules and Regulations Governing the State Bar of Georgia sets forth the rules governing the investigation and prosecution of the unlicensed practice of law. Rule 14-1.1 notes that the Supreme Court of Georgia has the inherent authority to regulate the practice of law, including the unlicensed practice of law. Rule 14-2.1 (a) defines the unlicensed practice of law to “mean the practice of law, as prohibited by statute, court rule, and case law of the State of Georgia.” Under OCGA § 15-19-51, it is a crime for “any person other than a duly licensed attorney” to practice law in Georgia. Whether the activities of a Domestic or Foreign Lawyer who is physically residing in Georgia violate Georgia law is a question of law on which the FAOB may not render an opinion, as its authority is limited to interpreting the Georgia Rules of Professional Conduct. GA. RULES OF PROF’L CONDUCT R. 4-403 (a) (2023).

2 GA. RULES OF PROF’L CONDUCT R. 1.0 (h) (2023).

3 GA. RULES OF PROF’L CONDUCT R. 1.0 (j) (2023).

4 A corollary question concerns the circumstances under which lawyers admitted to practice in Georgia may practice law by remote means while physically residing outside of Georgia. Under Georgia Rule of Professional Conduct 8.5 (a), a lawyer licensed in Georgia is subject to the disciplinary authority of Georgia no matter where the lawyer’s activities occur. Georgia Rule 5.5 (a) provides: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” Georgia lawyers who are practicing law remotely from other jurisdictions must ensure that their activities do not violate the law or the rules of those jurisdictions. This is potentially a complex question for which Georgia lawyers may need to consult authorities from other jurisdictions, such as those cited in this Opinion.

5 GA. RULES OF PROF’L CONDUCT R. 5.5 (d) (2023).

6 GA. RULES OF PROF’L CONDUCT R. 5.5 (f) (2023).

7 GA. RULES OF PROF’L CONDUCT R. 5.5 (c) (2023) (Domestic Lawyers) and 5.5 (e) (Foreign Lawyers).

8 See Hazard, Hodes, Jarvis &Thompson, LAW OF LAWYERING FOURTH ED. § 49.05 (2022-1 Supp. At 49-23) (“As a matter of public policy, the legitimate interest of the state of residence of the lawyer's home office in enforcing its own UPL rules in such instances will be either small or nonexistent. Practicing law ‘from’ a state in the absence of other connections between that practice and the state is not the same as practicing law ‘in’ a state.”)

9 GA. RULES OF PROF’L CONDUCT R. 5.5 (b) (Domestic Lawyers) and 5.5 (e) (Foreign Lawyers) (2022). This Opinion assumes that the hypothetical Domestic or Foreign Lawyer is not authorized by any rule or other law to establish an office or other continuous and systematic presence in Georgia for the practice of law.

10 See Hazard, Hodes, Jarvis &Thompson, LAW OF LAWYERING FOURTH ED. § 49.05 (2022-1 Supp. at 49-24) (“a prohibition against maintaining a physical office for lawyers not licensed in the state is sensible, precisely because members of the public will not even think to ask about licensure when they are sitting across an office table from a flesh and blood lawyer….) and 49-26 (“In addition to the ban on out-of-state lawyers opening in-state offices, Rule 5.5 (b) (1) also prohibits the establishment of any ‘other systematic and continuous presence’ in the jurisdiction for the practice of law (emphasis added). Although this second dividing line is not as sharp as the first one, the idea animating the two prohibitions is the same.”).

11 Other states differ somewhat in how they articulate the conclusion, but only the Committee on Unauthorized Practice of Law of the District of Columbia Court of Appeals has taken a more restrictive view. It concluded that a lawyer not licensed in the District of Columbia could provide services from D.C. only if the lawyer was practicing from home due to the COVID-19 pandemic and other conditions were met. See Opinion 24-20: Teleworking from Home and the COVID-19 Pandemic (2020).

12 The Florida Bar: Re Advisory Opinion – Out-of-State Attorney Working Remotely from Florida Home, 318 So. 3d 538, 540 (2021).

13 Id. at 541.

14 In Re Amendments to Rule Regulating the Florida Bar 4-5.5, 334 So.3d 1272 (2022).

15 Utah Ethics Advisory Committee Opinion 19-03 (2019) at 7.

16 Joint Opinion of the New Jersey Committee on the Unauthorized Practice of Law (Opinion 59) and the New Jersey Advisory Committee on Professional Ethics (Opinion 742) at 2 – 3 (2021). See also Va. Legal Ethics Op. 1896 (2022); Wisconsin Formal Ethics Opinion EF-21-02 (2021); ABA Formal Op. 495 (2020). Arizona, New York, Minnesota, New Hampshire, and North Carolina have addressed the issue in their rules rather than by ethics opinions. AZ. RULES OF PROF’L CONDUCT R 5.5(d); N.Y. CT. APP. RULES FOR THE TEMPORARY PRACTICE OF LAW IN NEW YORK § 523.5; MN. RULES OF PROF’L CONDUCT R 5.5(d); N.H. RULES OF PROF’L CONDUCT R. 5.5(d)(3); N.C. RULES OF PROF’L CONDUCT R 5.5(d)(2).