Florida Bar on the Ethics of Working Remotely During the Pandemic

In last week’s post we discussed a recent opinion from the District of Columbia Court of Appeals that addressed the issue of whether an attorney who is not a member of the District of Columbia Bar may nevertheless practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13). As we learned, according to the court, attorneys working remotely in D.C. during the pandemic are in luck: the court concluded that it’s perfectly ethical to do so.

But what about other jurisdictions? Is it permissible for lawyers to work remotely even in jurisdictions in which they’re not licensed?

This is an important question to ask since due to concerns about COVID-19, so many lawyers have retreated from their city homes and practices to work from more remote locations. If you’re one of those lawyers who happens to be working from a location in Florida, despite not being licensed to practice law there, you’re in luck: the Florida State Bar Standing Committee on the Unlicensed Practice of Law (Committee) recently weighed in on this issue in August.

The issue that the Committee considered in Advisory Opinion 2019-4 was whether it is ethically permissible for lawyers to practice law remotely from their homes in Florida in situations where the lawyers are unlicensed in Florida and employed by firms located in other states, but have temporarily moved to Florida during the pandemic and are working on matters unrelated to Florida laws.

The petitioning attorney explained during the hearing on this issue that his law firm was using a cloud-based software system for remote working. He described the IT setup as follows:

“(T)he firm employs a cloud-based system…It’s actually pretty amazing. I didn’t have any appreciation for this technology before I started with the firm. . . . [T]he way it works is . . . my computer in Florida is just a keyboard and a mouse and a screen. But the computer doesn’t actually – you don’t generate documents on the computer. Everything is actually on a…server in New Jersey.”

The fact that the attorney was practicing from Florida temporarily was particularly relevant to the Committee. Notably, at the very outset, the Committee highlighted the fact that the petitioning attorney had no plans to establish a permanent office in Florida:

“The facts raised in Petitioner’s request, quite simply, do not implicate the
unlicensed practice of law in Florida. Petitioner is not practicing Florida law or providing legal services for Florida residents. Nor is he or his law firm holding out to the public as having a Florida presence. As Petitioner testified, “we . . . tr[ied] to make sure that no Florida citizens, no Florida businesses, certainly not the Florida courts, would have any exposure to me or . . . the work I was doing.”

Also of import to the Committee was the testimony of one of the witnesses, an attorney, who weighed in on the future of remote working and its impact on the practice of law. The committee explained that his testimony was particularly impactful on their decision-making process:

In light of the current COVID-19 pandemic, the Standing Committee finds
the written testimony of Florida-licensed attorney, Salomé J. Zikakis, to be
particularly persuasive

“I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage….There are areas of the law that do not require being physically present, whether in a courtroom or a law office. Using the attorney’s physical presence in Florida as the definitive criteria [sic] is inappropriate. So long as the attorney is not practicing Florida law, is not advertising that he practices Florida law, and creates no public presence or profile as a Florida attorney, then there is no UPL simply because the attorney is physically located in Florida. There is no harm to the public. These facts do not and should not constitute UPL in Florida.

After considering all of the evidence and testimony from the hearing, the Committee reached a conclusion  similar to  that of the D.C. court from the case discussed last week. The Committee determined that the petitioning attorney could practice law under the circumstances described given that he had no intention of setting up a permanent practice in Florida:

The facts raised in Petitioner’s request, quite simply, do not implicate the
unlicensed practice of law in Florida. Petitioner is not practicing Florida law or providing legal services for Florida residents. Nor is he or his law firm holding out to the public as having a Florida presence…Consequently, it is the opinion of the Standing Committee that it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.

Both of these opinions are evidence of a greater trend: the pandemic has ushered in a new normal for the legal profession. Remote working, and the cloud-based technology needed to enable it, are here to stay. Practicing law from any location is becoming an accepted practice, and increasingly commonplace.

So if you’re still on the fence regarding the use of cloud computing software in your law firm, what are you waiting for? The tides have turned, and there’s no better time than now to make the transition to working remotely using cloud-based technology.