The Ethics of Working Remotely: The D.C. Bar on Virtual Practice During COVID-19

Like most lawyers, you’ve likely worked remotely for at least some of the past 6 months. This is because when quarantines were put in place earlier this year due to COVID-19, lawyers across the county sheltered in place and worked from remote locations. Some worked from their homes while others escaped crowded cities and quarantined with family in less populous areas. Still others packed up and moved to second homes located outside of the state in which they’re licensed.

To this day, many lawyers continue to work remotely from different locations at least part-time, while others continue working remotely full-time. Of course, when you practice law in a jurisdiction in which you’re not licensed, ethics issues relating to the unauthorized practice of law may be triggered. This is especially so if the jurisdiction from which you’re practicing virtually has not yet addressed the practical implications of lawyers using cloud-based tools to work from any location they choose.

Because the pandemic has had such a drastic effect on the working habits of lawyers – and the locations in which they work – it’s no surprise that ethics opinions are being decided that squarely address the issue of whether it’s ethical for lawyers to work for sustained periods from locations in which they’re not licensed. Two recent opinions on this issue were handed down from the D.C. Bar and Florida. Let’s take at the D.C. opinion in today’s post, and next week I’ll address the Florida opinion.

In late March, the District of Columbia Court of Appeals decided Opinion 24-20. At issue in this opinion was 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).

The Committee explained that lawyers who are not a members of the D.C.Bar, may not, under most circumstances practice “in a residence or in a commercial building, if all of the lawyer’s clients are located in other jurisdictions, if the lawyer provides legal advice only by telephone, letter, email, or other means, if the lawyer provides legal advice only concerning the laws of jurisdictions other than the District of Columbia, or if the lawyer informs the client that the lawyer is not authorized to practice law in the District of Columbia and does not provide advice about District of Columbia law.”

Next, the Committee set forth one exception to that rule that allows attorneys not admitted to the D.C. Bar to practice law in D.C. “for ‘incidental and temporary practice’…if the person is authorized to practice law and in good standing in another state or territory or authorized to practice law in a foreign country, is not disbarred or suspended for disciplinary reasons, and has not resigned with charges pending in any jurisdiction or court.”

Next the Committee turned to the issue to be determined, which was whether lawyers working remotely from D.C. during the pandemic who were not licensed to practice in D.C. fell within that exception. In making this assessment, the Committee reviewed the commentary to the rule for additional insight; the commentary provided that the exception applied “where an attorney with a principal office outside the District of Columbia is incidentally and temporarily required to come into the District of Columbia to provide legal services to a client.”

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Based on that language, theCommittee applied the exception to the situation at hand and concluded that lawyers working remotely in D.C. during the pandemic despite not being licensed in D.C.  fell within that exception, and “may practice law from the attorney’s residence in the District of Columbia under the ‘incidental and temporary practice’ exception of Rule 49(c)(13) if the attorney (1) is practicing from home due to the COVID-19 pandemic; (2) maintains a law office in a jurisdiction where the attorney is admitted to practice; (3) avoids using a District of Columbia address in any business document or otherwise holding out as authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.”

So attorneys working remotely in D.C. during the pandemic are in luck; that practice is deemed ethical even if the lawyer isn’t licensed in D.C. But what about other jurisdictions? Is it permissible for lawyers to work remotely even where they’re not licensed? Check back next week to see how the Florida State Bar Standing Committee on the Unlicensed Practice of Law answered this question.