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Working Remotely in a Different State: ABA Formal Opinion 495 Provides New Guidance

The ABA issued Formal Opinion 495, “Lawyers Working Remotely,” on Dec. 16, 2020, providing guidance for lawyers working remotely in a different jurisdiction.

 

As many lawyers have been working remotely during the Covid-19 pandemic, some have been working in a different state in which they aren’t licensed. The ABA Standing Committee on Ethics and Professional Responsibility released its latest formal ethics opinion this past Wednesday to clarify that lawyers may practice the law for which they’re licensed while physically in a different jurisdiction with the following limitations, as summarized in the ABA press release:

  • Does not establish an office or other systematic presence in that local jurisdiction.
  • Does not “hold out” a presence or availability to perform legal services in that local jurisdiction.
  • Does not actually provide legal services for matters in that local jurisdiction, unless otherwise authorized.

The opinion cites the similar positions of Maine and Utah. A brief quote from Utah’s ethics opinion included in the ABA opinion captures the reasoning: “What interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is the same—none.”

Guidance for Lawyers in Massachusetts

The ABA’s opinions are persuasive authority but not binding on state authority. The Massachusetts BBO hasn’t published any guidance stricter than the ABA opinion. For additional clarity, you can always reach their Ethics Hotline on Monday, Wednesday, or Friday from 2pm – 4pm, at (617) 728-8750.

 

ABA Formal Opinion 495

ABA Journal Feature