Thanks to advances in technology, lawyers around the country are able to represent their clients remotely, no matter where the lawyers physically shelter-in-place. Unfortunately, the rules and laws governing the unauthorized practice of law (UPL) and multi-jurisdictional practice (MJP) are archaic in most states, including California. Legal ethicists refer to a lawyer practicing from a state where the lawyer is not licensed as the “butt-in-seat” problem.

The majority of states follow some version of ABA Model Rule 5.5, stating lawyers admitted in one U.S. jurisdiction cannot provide legal services in another jurisdiction unless it is temporary and under strict conditions. Violators are at risk of discipline and criminal liability. California’s Rules of Professional Conduct (CRPC), Rule 5.5, is similar. See Business & Professions Code §§ 6125-6133; Cal. Rules of Court, Rules 9.40-9.48; Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court (1998) 17 Cal.4th 119. A lawyer cannot establish or maintain “a resident office or other systematic or continuous presence in California for the practice of law” if the lawyer is not authorized to practice here, even if that lawyer is not practicing California law. CRPC 5.5(b)(1).

Arizona, Minnesota, New Hampshire and North Carolina have rules that allow a lawyer licensed in another jurisdiction to provide legal services in their state on matters exclusively involving the law of the jurisdiction where the lawyer is licensed. Other jurisdictions have enacted temporary measures since the pandemic hit. However, it is a well-timed Florida ethics opinion that is generating buzz about this problem.

Florida’s proposed opinion #2019-4 advises that a lawyer who is licensed in one state, works for a law firm in that state, but permanently lives and works from his home in Florida where he is not licensed, has not established an “office” or a “systematic or continuous presence” in Florida for the “practice of law” because neither he nor his firm is holding him out as a Florida lawyer, soliciting Florida clients, or practicing Florida law. Instead, the lawyer is simply using modern technology to remotely practice the other state’s law. UPL rules are meant to protect a state’s consumers from incompetent or unethical lawyers. The Florida Bar’s Standing Committee on UPL reasons in its opinion that the lawyer “is not providing legal services to Florida clients”, “no Floridians are being harmed” and so “there are no interests of Floridians that need to be protected[.]” The opinion cites Utah Ethics Advisory Committee Opinion 19-03 (2019), which came to the same conclusion.

Lawyers should be allowed to live where they want while continuing their livelihoods through ethically practicing the law of the jurisdiction where they are licensed. California should embrace the lessons learned from COVID-19 and add a “butt-in-seat” exception to its UPL rule. In the meantime, out-of-state licensed lawyers must abide by California’s UPL and MJP requirements in order to avoid discipline and liability.

About the Author:

Kendra Basner is a partner at O’Rielly & Roche. She devotes her practice to counseling and advising lawyers, law firms, in-house corporate counsel, legal service providers and related businesses concerning legal ethics, risk management, and law practice planning and compliance with the unique perspective gained through advocating on behalf of lawyers in civil cases and State Bar discipline matters.