In California and most other jurisdictions, lawyers are allowed to temporarily sit and work in a jurisdiction where they are not licensed pursuant to certain restrictions. See California Rules of Court (CRC) Rule 9.40-9.49.1. However, if a lawyer overstays this temporary welcome, the lawyer could be at risk of disciplinary and criminal liabilities for committing the unauthorized practice of law (UPL). See California Rules of Professional Conduct (CRPC), Rule 5.5 and Business & Professions (B&P) Code sections 6125-6133.

In recent years, especially due to COVID-19, some jurisdictions have eased restrictions around lawyers working where they are not licensed during the pandemic. See, i.e. D.C. Ethics Opinion 24-20 (March 23, 2020). Arizona, Minnesota, North Carolina, New Hampshire and Ohio have updated their rules to provide specific permissions for remote practice by out-of-state licensed lawyers. See Ariz. R. Prof’l Conduct 5.5(d); Minnesota R. Prof’l Conduct 5.5(d); N.H.R. Prof’l Conduct 5.5(d)(3); N.C. R. Prof’l Conduct 5.5(d); and Ohio R. Prof’l Conduct 5.5(d)(4). Michigan and New York are presently considering similar rule amendments. See MI Proposed Amendment to MRPC 5.5 (April 24, 2021); Proposed Amendments to NY Court of Appeals Part 523 (November 5, 2021). A flurry of ethics opinions from around the country have also addressed this issue. See ABA Formal Opinion 495 (2020); FL Opinion 2019-4 (May 20, 2021); Pennsylvania & Philadelphia Bar Assocs. Joint Formal Op. 2021-100 (March 2, 2021); Utah Ethics Advisory Committee Opinion No. 19-03 (May 14, 2019); and NJ Joint Opinion 742 (10/6/21).

Earlier this year, BASF published the only California opinion that exists on this topic. BASF Opinion 2021-1 (August 2021). Based on a detailed analysis of California’s applicable rules, statutes, and case law, it explains that a lawyer who is not licensed in California, but merely physically present here while using technology to remotely practice law in compliance with the rules of the jurisdiction where the lawyer is licensed, should not be held in violation of California’s UPL rules and laws so long as the lawyer does not advertise or otherwise hold out as a licensed California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in California, and does not represent a California person or entity. However, if such a lawyer represents a California client, an assessment under the UPL regulations will likely consider the nature of the representation, whether the representation complies with the regulations of the jurisdiction where the lawyer is licensed, the role of other California lawyers in the representation, and other factors relevant to the protection of the client. BASF’s opinion further advises that California-licensed lawyers working in a jurisdiction where they are not licensed must adhere to the rules of that jurisdiction. Failure to do so could be found to violate CRPC Rule 5.5(a).

Law firms who have lawyers practicing remotely are urged to evaluate these risks. After all, lawyers in supervisory or management positions could be held vicariously responsible for another lawyer’s ethical violation under CRPC Rule 5.1.