Can a lawyer not licensed in New Jersey work remotely from a New Jersey home for an out-of-state firm or company without engaging in the unauthorized practice of law?

Plain-English summary

Opinion 742, a joint opinion of the Committee on the Unauthorized Practice of Law (as UPL Opinion 59) and the Advisory Committee on Professional Ethics, answers a question that came up repeatedly on the attorney ethics hotline: whether a lawyer who is not admitted in New Jersey is "practicing New Jersey law" when working remotely from a New Jersey home for an out-of-state law firm or company.

The Committees ground the analysis in Court Rule 1:21-1(a), which bars practicing law in New Jersey without a plenary New Jersey license, and which (per In re Jackman) bars a non-New-Jersey lawyer from maintaining "a continuous and systematic presence in New Jersey for the practice of law." The dispositive question, the opinion says, is whether the remote lawyer either (1) practices New Jersey law, or (2) maintains a continuous and systematic presence in New Jersey for the practice of law.

The opinion holds that working remotely on out-of-state matters does not, by itself, create such a presence. A "continuous and systematic presence" requires an outward manifestation of physical presence as a lawyer in New Jersey. Drawing on ABA Formal Opinion 495 (December 16, 2020), the Committees reason that lawyers do not "hold themselves out to the public" when they are effectively invisible as a lawyer to the jurisdiction where they are physically located but not licensed. Outward manifestations that would cross the line include practicing from a New Jersey law office, or advertising a New Jersey practice, a New Jersey client-meeting location, or a New Jersey mailing address.

Accordingly, a non-New-Jersey lawyer associated with an out-of-state firm, or serving as in-house counsel to an out-of-state company, who merely works remotely from a New Jersey home and does not exhibit those outward manifestations, does not have a continuous and systematic presence for the practice of law in New Jersey and is not engaged in the unauthorized practice of New Jersey law.

In practice

The opinion holds that, under New Jersey Court Rule 1:21-1(a), a lawyer not licensed in New Jersey may work remotely from a New Jersey home on out-of-state legal matters without engaging in the unauthorized practice of law, provided the lawyer does not practice New Jersey law and does not outwardly hold out as available to practice in New Jersey. Per the opinion, the conduct that would create a prohibited "continuous and systematic presence" is an outward manifestation of presence as a lawyer in New Jersey: a New Jersey law office, or advertising or communications presenting a New Jersey practice, a New Jersey meeting location, or a New Jersey mailing address for legal work.

The opinion adopts the reasoning of ABA Formal Opinion 495 on lawyers working remotely from a jurisdiction where they are not licensed.

Common questions

Q: I'm licensed in another state and now work from home in New Jersey for my out-of-state firm. Am I committing UPL?

A: Not on these facts. The Committees conclude that working remotely from a New Jersey home on out-of-state matters is not the unauthorized practice of New Jersey law, as long as you do not practice New Jersey law and do not maintain a continuous and systematic presence in New Jersey for the practice of law.

Q: What turns remote work into a prohibited New Jersey presence?

A: An outward manifestation of physical presence as a lawyer in New Jersey. The opinion lists examples: practicing from a New Jersey law office, or advertising a New Jersey legal practice, a New Jersey location for meeting clients, or a New Jersey address for mail and deliveries.

Q: Does this apply to in-house counsel?

A: Yes. The opinion addresses both lawyers associated with out-of-state law firms and lawyers serving as in-house counsel to out-of-state companies who work remotely from New Jersey homes.

Q: What authority does the opinion rely on?

A: Court Rule 1:21-1(a), the New Jersey Supreme Court's decision in In re Jackman, prior ACPE Opinion 550, and ABA Formal Opinion 495 (December 16, 2020) on lawyers working remotely.

Background and rules framework

The opinion is grounded in New Jersey Court Rule 1:21-1(a), which restricts the practice of law in New Jersey to plenary-licensed New Jersey attorneys, rather than in a numbered Rule of Professional Conduct. In substance the question is one of multijurisdictional practice, the subject of Model Rule 5.5, and the Committees expressly adopt the reasoning of ABA Formal Opinion 495, which interprets Model Rule 5.5 for lawyers working remotely from a jurisdiction where they are not admitted. The operative standard the opinion applies is whether the lawyer maintains "a continuous and systematic presence in New Jersey for the practice of law," as articulated in In re Jackman.

Citations and references

Rules of Professional Conduct:

• MR 5.5 (multijurisdictional practice): the corresponding Model Rule. The opinion itself analyzes New Jersey Court Rule 1:21-1(a) and adopts the reasoning of ABA Formal Opinion 495.

Court rules:

• N.J. Court Rule 1:21-1(a) (practice of law in New Jersey limited to plenary-licensed attorneys)

Cases:

• In re Jackman, 165 N.J. 580 (2000) (continuous and systematic presence for the practice of law)

Other opinions cited:

• ABA Formal Op. 495 (Dec. 16, 2020): lawyers working remotely from a jurisdiction where they are not licensed
• ACPE Opinion 550 (Jan. 24, 1985)

See also

• ABA Formal Op. 495: Lawyers Working Remotely
• NJ ACPE Op. 740: Non-Legal Companies and Unauthorized Practice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2021/acp742-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics and Committee on the Unauthorized Practice of Law, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. Minor spacing artifacts from the source extraction may remain; the linked official source controls.

Appointed by the Supreme Court of New Jersey

JOINT OPINION

Committee on the Unauthorized Practice of Law Opinion 59

Advisory Committee on Professional Ethics Opinion 742

Non-New Jersey Licensed Lawyers Associated With Out-of-State Law Firms or Serving as In-House Counsel to Out-of-State Companies Remotely Working from New Jersey Home

Many non-New Jersey licensed lawyers have called the attorney ethics research assistance hotline with questions about whether they would be considered to be practicing New Jersey law if they work remotely from their New Jersey homes for law firms, or as in-house counsel for companies, that are located out-of-state. The Committee on the Unauthorized Practice of Law and Advisory Committee on Professional Ethics hereby issue this joint opinion to provide guidance on the issue.

Court Rule 1:21-1(a) states that no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State. Accordingly, non-New Jersey licensed lawyers may not maintain a continuous and systematic presence in New Jersey for the practice of law. In re Jackman, 165 N.J. 580, 588 (2000) (Massachusetts lawyers practiced law from a New Jersey law firm office). See also Advisory Committee on Professional Ethics Opinion 550 (January 24, 1985) (non-New Jersey licensed lawyers who have not been admitted to the bar here in accordance with the rules of our Supreme Court are not authorized to conduct a practice in New Jersey, either on their own or through the subterfuge of New Jersey-licensed 'associates' ).

While Court Rule 1:21-1(a) refers to practice of law in New Jersey, the focus of the analysis under this Rule is: (1) whether a lawyer is practicing New Jersey law; or (2) whether the lawyer maintains a continuous and systematic presence in New Jersey for the practice of law. The inquirers on the attorney ethics hotline state that they practice the law of the out-of-state jurisdiction where their law firms, or companies, are located, and they do not practice New Jersey law when working remotely from their New Jersey homes. The question remains whether they maintain a continuous and systematic presence in New Jersey for the practice of law.

Non-New Jersey licensed lawyers may practice out-of-state law from inside New Jersey provided they do not maintain a continuous and systematic presence in New Jersey by practicing law from a New Jersey office or otherwise holding themselves out as being available for the practice of law in New Jersey. A continuous and systematic presence in New Jersey requires an outward manifestation of physical presence, as a lawyer, in New Jersey. As the American Bar Association, Standing Committee on Ethics and Professional Responsibility, recently stated, lawyers do not hold themselves out to the public when they are for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed. ABA Formal Opinion 495 (December 16, 2020). Hence, actions that merely manifest presence in New Jersey in the capacity of a private citizen or resident, and not as a lawyer, do not raise such concerns.

Such outward manifestations of physical presence include, most significantly, practicing from a law office located in New Jersey. See Jackman, supra, 165 N.J. at 588 (Massachusetts lawyer practicing from a New Jersey law firm office). Other outward manifestations include, but are not limited to, any advertisement or similar communication stating that the non-New Jersey licensed lawyer engages in a legal practice in New Jersey; any advertisement or similar communication referring to a location in New Jersey for the purpose of meeting with clients or potential clients; any advertisement or similar communication stating that mail or deliveries to the lawyer should be directed to a New Jersey location; and otherwise holding oneself out as available to practice law in New Jersey.

Accordingly, non-New Jersey licensed lawyers who are associated with an out-of-state law firm, or are in-house counsel for an out-of-state company, and who simply work remotely from their New Jersey homes but do not exhibit such outward physical manifestations of presence, are not considered to have a continuous and systematic presence for the practice of law in New Jersey. Such non-New Jersey licensed lawyers are not considered to be engaging in the unauthorized practice of New Jersey law.