Lawyers' Risk Management Newsletter, September 2020

• Published date: 30 September 2020
• Subject Matter: Law Department Performance, Coronavirus (COVID-19), Performance, Operational Impacts and Strategy
• Law Firm: Clyde & Co
• Author: Mr J. Richard Supple Jr., Anthony E. Davis, Janis M. Meyer and Nataniel Arabov

Unauthorized practice of law in the era of remote lawyering

During the COVID-19 pandemic, law firms are permitting their lawyers to work remotely even when a return to the office is possible and practicable. One of the main professional responsibility concerns about these arrangements is the risk of falling afoul of the rules governing the unauthorized practice of law ("UPL"). That this problem even exists is a throwback to the historic premise that the regulation of who may practice law is based on the lawyer's physical location, embodied in the states' systems of lawyer regulation. ABA Model Rule 5.5, adopted with variations and a patchwork of exceptions in almost every state¹, restricts lawyers from engaging in the practice of law when they are physically located in a state where they are not licensed or admitted. The potential for engaging in UPL, already a problem in the pre-pandemic era, is exacerbated by the new remote practice culture. Even before the pandemic, this byzantine, state-by-state system of regulation sometimes posed potentially serious restrictions on the freedom of clients to choose lawyers to act for them on a nationwide basis.²

Two recent state court decisions highlight the inherent contradiction between the theoretical reach of UPL regulation despite the obvious and necessary - and inevitable - universality of the practice of law across state lines. In In re Charges of Unprofessional Conduct in Panel File No. 39302, a Colorado admitted lawyer exchanged approximately two dozen emails with a Minnesota lawyer. See 884 N.W.2d 661, 664-65 (Minn. 2016). Notably, the Colorado lawyer was never physically present in Minnesota. The Minnesota Supreme Court upheld the professional discipline in Minnesota of the Colorado lawyer, holding that "engaging in e-mail communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota." Id. at 663.

Similarly, in Ohio State Bar Assn. v. Klosk, a lawyer, who was not licensed to practice law in Ohio, and his law firm, which did not have another member of the firm admitted in Ohio, represented an Ohio resident in debtor-creditor negotiations with creditor's Ohio counsel. 155 Ohio St. 3d 420, 2018-Ohio-4864, 122 N.E.3d 107 (2018). The lawyer sent a single letter to creditor's counsel, on behalf of the Ohio debtor. Id. at 421. In its decision, the Ohio Supreme Court...