Can a Pennsylvania lawyer work remotely from a state where they are not licensed?

Plain-English summary

This is a joint opinion of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Philadelphia Bar Association Professional Guidance Committee. It addresses a question raised frequently during the pandemic: whether a Pennsylvania lawyer who lives in, for example, New Jersey, but is not licensed there, may practice from a home office physically located in New Jersey without committing unauthorized practice under Pa.R.P.C. 5.5.

The opinion adopts ABA Formal Opinion 495 ("Lawyers Working Remotely," December 16, 2020) and applies it to Pennsylvania. It quotes the ABA's reasoning that the purpose of Rule 5.5, protecting the public from unlicensed practitioners, "is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed." Because Pa.R.P.C. 5.5 is identical to the Model Rule, the Committees conclude the same analysis controls in Pennsylvania.

The opinion explains, following ABA Opinion 495, that a lawyer does not "establish" an office or a "systematic and continuous presence" in the local jurisdiction merely by working there, so long as the lawyer does not list a local address on letterhead, business cards, websites, or advertising, and does not hold out availability to practice the local jurisdiction's law. The opinion notes one express limit: if the local jurisdiction has determined by statute, rule, case law, or opinion that remote practice from within its borders is unauthorized practice, then Rule 5.5(a) would prohibit it.

In practice

Under this opinion, a Pennsylvania-licensed lawyer who is physically located in another state where the lawyer is not admitted may continue to practice Pennsylvania law for Pennsylvania clients, provided the lawyer stays "invisible" as a lawyer to the local jurisdiction: no local address on indicia of practice, no holding out, and no provision of legal services governed by the local jurisdiction. The opinion conditions this conclusion on the local jurisdiction not having determined that such remote practice is unauthorized practice.

Common questions

Q: Does living in another state make me a remote-practice UPL risk in Pennsylvania matters?

A: No, in the Committees' view. The opinion concludes that a Pennsylvania lawyer practicing Pennsylvania law for Pennsylvania clients does not engage in unauthorized practice merely because the lawyer is physically located outside Pennsylvania.

Q: What would turn permissible remote work into unauthorized practice?

A: Holding out a local presence. The opinion concludes that putting a local-jurisdiction address on letterhead, business cards, websites, or advertising, or offering to provide legal services in the local jurisdiction, can establish an office or a systematic and continuous presence there for the practice of law.

Q: What if the state where I am physically located has its own rule against remote practice?

A: Then the conduct may be barred. The opinion cautions, quoting ABA Opinion 495, that if a jurisdiction has determined by statute, rule, case law, or opinion that remote practice within it is unauthorized practice, Rule 5.5(a) would prohibit the lawyer from doing so.

Background and rules framework

The opinion interprets Pennsylvania Rule of Professional Conduct 5.5 ("Unauthorized Practice of Law; Multijurisdictional Practice of Law"), which the opinion states is identical to ABA Model Rule 5.5. Rule 5.5(a) bars practicing law in a jurisdiction in violation of that jurisdiction's regulation of the profession; Rule 5.5(b) bars a lawyer not admitted in a jurisdiction from establishing an office or other systematic and continuous presence there for the practice of law, or holding out admission there. The opinion adopts the ABA's construction of these terms from Formal Opinion 495.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 5.5, including 5.5(a) and 5.5(b); ABA Model Rule 5.5 (identical)

Cases:

• Estate of Condon v. McHenry, 76 Cal. Rptr. 2d 922 (Cal. Ct. App. 1998), out-of-state lawyer representing out-of-state client in a local proceeding did not commit unauthorized practice

Other opinions cited:

• ABA Formal Op. 495: Lawyers Working Remotely (adopted by this opinion)
• Florida Bar Standing Committee on the Unlicensed Practice of Law, FAO 2019-4 (Aug. 2020): remote practice not involving local law is not unauthorized practice

See also

• ABA Formal Op. 495: Lawyers Working Remotely
• ABA Formal Op. 498: Virtual Practice
• PA Bar Ethics Op. 2020-300: Ethical Obligations for Lawyers Working Remotely

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: Joint Formal Opinion 2021-100.pdf