Ezel / Ethics Opinions / WISBAR
WISBAR January 29, 2021

What ethical duties apply to a Wisconsin lawyer who works remotely or from outside the state?

Short answer: The opinion concludes that working remotely does not change a lawyer's core duties of competence, diligence, communication, and confidentiality, but heightens the need for technological competence, reasonable cybersecurity, and supervision of remote lawyers and staff. It also concludes that a lawyer physically located where they are not licensed may serve clients of their licensing jurisdiction without committing unauthorized practice, as long as they do not hold out a local office or local availability.

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This page answers the general question as of 2021. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion EF-21-02 (January 29, 2021) addresses how a lawyer's ethical duties apply when working remotely, a question made urgent by the COVID-19 pandemic but expected to outlast it. The committee's central point is that the core duties, competence (SCR 20:1.1), diligence (SCR 20:1.3), communication (SCR 20:1.4), and confidentiality (SCR 20:1.6), do not change with the lawyer's physical location; what changes is how they are discharged through technology. Competence now includes technological competence, drawing on the 2012 amendment to Comment [8] of Rule 1.1: the lawyer must understand the devices, software, and security used to communicate, prepare, transmit, and store client information, and smaller firms may need to retain expert help. Diligence and communication require systems to access files, handle mail, and stay reachable, and the committee notes a lawyer should plan for incapacity of the lawyer or client.

On confidentiality, the committee relies on SCR 20:1.6(d), which requires reasonable efforts to prevent inadvertent or unauthorized disclosure of client information, and on ABA Formal Opinion 477R: there is no single required security step and no automatic violation from a breach, only a fact-dependent "reasonable efforts" standard. The opinion stresses the heightened role of partners, managers, and supervisory lawyers under SCRs 20:5.1 and 20:5.3 to ensure that remote lawyers and nonlawyer staff comply with the rules, through written policies, training, and regular remote supervision.

The opinion also resolves an unauthorized-practice question under SCR 20:5.5. Following ABA Formal Opinion 495 and opinions from Utah and Maine, the committee concludes that a lawyer physically present in Wisconsin who is not licensed here may practice the law of a jurisdiction where the lawyer is licensed, for that jurisdiction's clients, without engaging in unauthorized practice, provided the lawyer does not establish a public office in Wisconsin, solicit Wisconsin business, or hold out availability to practice Wisconsin law. By the same token, a Wisconsin lawyer working from another state must check that state's rules, since each jurisdiction sets its own. The opinion closes with detailed, non-mandatory cybersecurity guidance (strong passwords, multi-factor authentication, VPNs, encryption, vetted cloud vendors, secure video meetings) and supervision and client-preparation suggestions.

In practice

Under this opinion, conduct matching its fact pattern, a Wisconsin lawyer working remotely or from outside the state, is governed by the same core duties as office practice. The committee concludes that the lawyer must maintain technological competence and make reasonable efforts to secure client information under SCR 20:1.6(d), that firm managers must supervise remote lawyers and staff under SCRs 20:5.1 and 20:5.3, and that a lawyer located where they are not licensed may serve clients of their licensing jurisdiction without unauthorized practice if they do not hold out a local office or local availability. The committee offers specific cybersecurity practices as reasonable precautions rather than fixed requirements.

Common questions

Q: Do a lawyer's duties change when working from home?

A: No. The committee concludes the core duties of competence, diligence, communication, and confidentiality are unchanged by the lawyer's physical location; only how they are met through technology changes.

Q: What cybersecurity is required when working remotely?

A: Reasonable efforts, not a fixed checklist. The committee applies SCR 20:1.6(d) and ABA Formal Opinion 477R, under which a breach is not an automatic violation, and offers practices such as strong passwords, multi-factor authentication, VPNs, and encryption.

Q: Can a lawyer work from a state where they are not licensed?

A: Yes, for their own jurisdiction's clients. The committee concludes, following ABA Formal Opinion 495, that a lawyer not licensed in Wisconsin may serve clients of their licensing jurisdiction from Wisconsin if they do not open a public office here, solicit Wisconsin business, or hold out availability to practice Wisconsin law.

Q: What do firm managers have to do for remote workers?

A: Supervise them. The committee concludes SCRs 20:5.1 and 20:5.3 require partners and supervisors to use written policies, training, and regular remote meetings to ensure remote lawyers and staff comply with the rules.

Background and rules framework

The opinion interprets the core-duty rules SCR 20:1.1 (competence, including technological competence), SCR 20:1.3 (diligence), SCR 20:1.4 (communication), and SCR 20:1.6 (confidentiality, including the reasonable-efforts duty in 20:1.6(d)), together with the supervisory rules SCR 20:5.1 and SCR 20:5.3 / Model Rules 5.1 and 5.3, and the unauthorized-practice rule SCR 20:5.5 / Model Rule 5.5. It builds on the 2012 ABA technology amendments to Rule 1.1 (adopted in Wisconsin in 2017) and on ABA Formal Opinions 477R and 495.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.1 / Model Rule 1.1 (competence; technological competence)
  • Wis. SCR 20:1.6, 20:1.6(d) / Model Rule 1.6 (confidentiality; reasonable efforts to secure information)
  • Wis. SCR 20:5.1, 20:5.3 / Model Rules 5.1, 5.3 (supervisory responsibilities)
  • Wis. SCR 20:5.5 / Model Rule 5.5 (unauthorized and multijurisdictional practice)
  • Wis. SCR 20:1.3, 20:1.4 / Model Rules 1.3, 1.4 (diligence; communication)

Cases:

  • Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (Cal. 1998), out-of-state firm and unauthorized practice

Other opinions cited:

  • ABA Formal Opinion 495 (2020): practicing one's licensing-jurisdiction law while physically in another state
  • ABA Formal Opinion 477R (2017): securing client communications, a reasonable-efforts standard
  • Wisconsin Formal Ethics Op. EF-15-01: ethical obligations of attorneys using cloud computing

See also

Source

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