Virginia Lawyers Weekly VA Lawyers Weekly
A North Carolina-based attorney can work out of at a vacation home on Smith Mountain Lake in Virginia so long as he works only on cases involving North Carolina or federal law, according to a proposed Legal Ethics Opinion from the Virginia State Bar.
Proposed LEO 1896 states that Virginia has no interest in regulating an out-of-state attorney’s practice for out-of-state clients even if the attorney is working out of a private residence located in Virginia.
In other words, “A lawyer who is not licensed in Virginia may work from a location in Virginia on a continuous and systematic basis, as long as that practice is limited to exclusively federal law and/or the law of the lawyer’s licensing jurisdiction, regardless of the reason for being in Virginia,” the opinion states.
The opinion adds that an out-of-state attorney must disclose that she is not licensed to practice in Virginia when necessary.
Filed on June 29, the proposed opinion reiterates guidance from a prior opinion, LEO 1856. Approved in 2016, LEO 1856 stated that foreign attorneys can work remotely in Virginia for any length of time, provided that the work done by the attorney solely involves the practice of law in the foreign lawyer’s licensing jurisdiction or federal law that does not require a Virginia license.
With the increase in remote work due to the effects of the COVID-19 pandemic, several bars across the country have issued ethics opinions on the issue over the last year. In these opinions, many bars have taken a more narrow scope of the issue, ruling that out-of-state attorneys can only engage in the practice of working remotely in emergency situations, like the COVID-19 pandemic.
The District of Columbia Bar issued an unauthorized practice of law opinion reaching that conclusion, stating that “an attorney who is not a member of the District of Columbia bar may practice law from the attorney’s residence in the District of Columbia … if the attorney is practicing from home due to the COVID-19 pandemic.”
Here in the commonwealth, proposed LEO 1896 endorses the position of a Utah State Bar opinion, Utah Ethics Opinion 19-03. Approved in 2019, the Utah bar posed a hypothetical question: “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?” The bar answered its question by saying it has no interest in regulating that sort of remote work.
The VSB Standing Committee on Legal Ethics is seeking public comment on proposed LEO 1896 through Aug. 30. Comments can be submitted to [email protected]
North Carolina
What about a Virginia lawyer with a vacation home on the Outer Banks of North Carolina?
North Carolina State Bar Ethics Counsel Brian Oten said via email that the bar has not issued a formal ethics opinion on the subject of remote work by out-of-state attorneys. However, Assistant Ethics Counsel Suzanne Lever recently wrote an article on the subject in the summer 2021 edition of the North Carolina State Bar Journal.
In the article, Lever references the American Bar Association’s recent opinion on the issue, ABA Formal Opinion 495. The opinion clarified issues surrounding ABA Rule 5.5, which bars lawyers from establishing a “systematic and continuous presence” in a jurisdiction where they are not licensed.
ABA Formal Opinion 495 states that out-of-state practice is permissible under Rule 5.5 “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.” The opinion advises lawyers to avoid advertising or suggesting they have an office in a locale where they are not licensed.
As it relates to North Carolina, Lever wrote that “the North Carolina Rules of Professional Conduct have always allowed a lawyer licensed in North Carolina to provide legal services to their North Carolina clients even if the lawyer is out of state.” Lever adds that it is important for North Carolina attorneys to be cognizant of the rules of states where they are working remotely, as engaging in remote practice can violate the UPL statute in some states.
Lever highlights two additional concerns attorneys need to be aware of: technology and client expectations.
“The primary ethical concern with regards to technology in a remote environment is confidentiality,” Lever wrote. Attorneys should also be aware of security threats, including devices that could inadvertently record confidential conversations.
“Remote locations are ripe with listening ears,” Lever wrote.
As for client expectations, Lever said attorneys should be sure their clients are aware that they are not located in the state presently, as clients may want representation from an attorney they can easily meet in person.
“A North Carolina licensed attorney, who is working remotely from Hilton Head, [South Carolina,] during the pandemic, cannot give the false impression that they are still physically located in North Carolina,” Lever wrote.
