Remember when working remotely was taboo?
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Several years ago, I published a piece here on Attorney at Work titled “Solo Lawyers: Where Is Your Office?” Back then, lawyers working anywhere but a traditional bricks-and-mortar office with their firm name on the door typically glossed over their nontraditional working environment. Over time, the taboo surrounding less traditional work setups began to ease, and early in 2020, when COVID-19 hit the world, the stigma had all but disappeared.
Today, the tables have really turned, and the lawyer in the bricks-and-mortar office is the less typical one.
With that context, today we can boil down the question of where lawyers work to a much simpler answer: Lawyers work wherever we happen to be.
Working Remotely Was Once Unthinkable in the Legal Profession
At one time, the idea of a lawyer working remotely — even from home — was taboo. For an associate in Biglaw, the idea was met with horror and was only semi-acceptable if you were sick. Then, the partners’ options were to allow you to actually use a sick day or let you work from home while recuperating. Working from home was better than not working at all, but it was definitely frowned on.
In small law firms, where lifestyle mattered somewhat more, there was pushback against remote teams, too. Lawyers would argue that they could not effectively manage their team from afar, or ensure their team was working. Also, camaraderie would suffer if people were not face-to-face every day.
Even for a solo lawyer, working remotely was frowned on. We had ideas that clients expected us in an office (even if they didn’t come to see us). Somehow we were not real lawyers if we worked from home or anywhere besides a traditional bricks-and-mortar office.
Besides battling an entrenched workplace culture, there were also ethical concerns about working remotely. Some concerns were legitimate; others were overblown. For example, the concern that confidential conversations with clients would not be private is an easy one to remedy.
Concerns About the Ethics of Working Remotely Are Disappearing
Can you practice from a state where you aren’t licensed?
A larger concern was for lawyers who wanted to work while physically present in a state where they were not licensed. There was a legitimate unauthorized practice of law issue to analyze. Most states looked the other way so long as the lawyer was not seeking clients in the state, practicing that state’s law, or otherwise indicating to the world that they were physically present in that state. Still, it was an uneasy feeling to work remotely, knowing that this issue hung out there as a possible problem.
Another worry was tech-related.
There was a time when remote access meant sitting at home in front of a desktop computer connected to a dial-up modem, accessing the firm’s server through a virtual desktop. Then came wireless routers, cloud-based platforms and the ease of logging into your firm’s resources from your phone at Starbucks. As technology became easier to use, lawyers legitimately began to wonder whether they could work remotely and maintain appropriate security.
Tech and security concerns were largely obviated pre-pandemic by ethics guidance in Comment 8 to Rule 1.1 of the Model Rules of Professional Conduct (requiring lawyers to maintain technological competence), and the overall security of the most commonly used apps available to lawyers.
Still, ethics and security concerns were still top of mind for many practicing lawyers in March 2020, as we were thrust into a Zoom world. We also faced the sudden propagation of new platforms and wider use of existing platforms with the sudden rise of videoconferencing.
Working Remotely: Ethics Regulators to the Rescue
In general, legal ethics guidance is slow to evolve. A great barometer for that is California’s social media ethics opinion (State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion 2012-186), which was trailblazing at the time it was issued. That was in 2012 — seven years after Facebook became popular among the general public.
The glacial pace of legal ethics change adds to the unease of lawyers who have to adapt very quickly to a changing environment, as we did at the start of the pandemic. In a positive turn of events, regulators have stepped up to the challenge and issued major pieces of guidance that dramatically ease the worries of lawyers working remotely.
Pennsylvania was the first to issue pandemic-related guidance, and it did so right away. The Pennsylvania Bar Association issued Formal Opinion 2020-300 on April 10, 2020. It dealt with all of the major worries plaguing lawyers around the country at that time. It explained how to navigate working from home while maintaining confidentiality while continuing to practice competently while supervising staff (lawyer and non-lawyer). It gave pages of advice on best practices, even discussing encryption of data, online security, and video conferences. It even went so far as to address lawyer civility — much needed at a time when the entire world was facing unreal stress.
Pennsylvania’s opinion became a model for lawyers everywhere. Even outside of Pennsylvania, the considerations in the opinion were of general applicability and provided much-needed guidance.
As to the physical location issue, lawyers found themselves often forced to work from the state where they lived and not the state where they were licensed. The de facto permission of their home state was all they could go on. However, more recently, regulators have started to address this issue head-on.
The Florida Supreme Court approved the state’s ethics opinion on remote working in May 2021. The Florida Bar Standing Committee on the Unlicensed Practice of Law’s AFO #2019-4 was issued as a proposed advisory opinion in August 2020. The question posed was a common one: May a lawyer domiciled in Florida but not licensed to practice law there, who is employed by a law firm in another state in which he is licensed, practice law of the state of licensure from his home in Florida?
In the scenario presented, the lawyer has no office space in Florida, does not have a public or online presence in Florida, and does not advertise or otherwise inform the public of his physical location. The lawyer’s work did not implicate Florida law.
Florida said the lawyer may indeed work remotely from Florida under these circumstances without implicating the ban on the unauthorized practice of law. This was particularly noteworthy because prior to this opinion, Florida had been the prime example of a state that did not allow anything close to this type of arrangement.
Other states are following suit, the most recent being New Jersey. In October 2021, the Committee on the Unauthorized Practice of Law and Advisory Committee on Professional Ethics issued a joint opinion permitting non-New Jersey licensed attorneys associated with out-of-state law firms or companies to work remotely from their New Jersey homes without running afoul of the state’s UPL provisions.
The Office Doors Are Open
With the biggest ethical barriers to working from anywhere quickly becoming concerns of the past, lawyers are more free to choose where they work. For some, the traditional office with their name on the door may continue to be first choice. For others, it will be a beach in Florida.
One thing that is clear from the combination of evolving technology, COVID-19 and updated ethics rules is that our idea of what it looks like to work as a lawyer has changed forever.