April 20, 2022 – With the growth of remote work since the beginning of the pandemic, can lawyers work from a state where they are not licensed?

Question

I recently had new neighbors move in next door. It turns out that my new neighbor is also a lawyer who works for a firm in Chicago, but basically works from home all the time.

In conversation, she mentioned that she is not licensed in Wisconsin, but moved here because her spouse got a job, and she travels to Chicago when necessary.

I like my neighbor and know that many things changed during the pandemic, but I wonder if it is OK for a lawyer to work from home full time in a jurisdiction in which they are not licensed.

Can a lawyer who is licensed only in another state work from home full time in Wisconsin?

Answer

A lawyer’s physical location does not itself determine where a lawyer is practicing law, as discussed in a previous Ethical Dilemmas article, but physical location can be a factor in the analysis.

SCR 20:5.5 regulates the unauthorized practice of law by lawyers, and is an unusual disciplinary rule in that it primarily regulates lawyers who are not licensed in Wisconsin. It states, in relevant part:

(a) A lawyer shall not:

(1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction except that a lawyer admitted to practice in Wisconsin does not violate this rule by conduct in another jurisdiction that is permitted in Wisconsin under SCR 20:5.5 (c) and (d) for lawyers not admitted in Wisconsin; or

(2) assist another in practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by this rule or other law, establish an office or maintain a systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to the practice of law in this jurisdiction.

In the scenario, the lawyer is practicing through a firm in Chicago, where the lawyer is licensed. The lawyer has not established an office nor held out to the public or otherwise represented to the public that the lawyer is licensed in Wisconsin.

So the question is whether working from home (i.e., physical presence) constitutes a “systematic and continuous presence” or is otherwise the unauthorized practice of law.

The State Bar’s Standing Committee on Professional Ethics addressed this in Ethics Opinion EF-21-02, which relies in part on a recent ABA ethics opinion:

Both Model Rule 5.5(b)(1) and SCR 20:5.5(b)(1) provide that a lawyer who is not admitted to practice in this jurisdiction shall not “establish an office or maintain a systematic and continuous presence in this jurisdiction for the practice of law.” In December 2020, the ABA’s Standing Committee issued ABA Formal Opinion 495 to provide guidance.

Words in the rules, unless otherwise defined, are given their ordinary meaning. “Establish” means “to found, institute, build, or bring into being on a firm or stable basis.” A local office is not “established” within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence. Likewise it does not “establish” a systematic and continuous presence in the jurisdiction for the practice of law since the lawyer is neither practicing the law of the local jurisdiction nor holding out the availability to do so. The lawyer’s physical presence in the local jurisdiction is incidental; it is not for the practice of law. Conversely, a lawyer who includes a local jurisdiction address on websites, letterhead, business cards, or advertising may be said to have established an office or a systematic and continuous presence in the local jurisdiction for the practice of law. (Footnotes omitted.)

Similarly, both Model Rule 5.5(b)(2) and SCR 20:5.5(b)(2) prohibit a lawyer who is not admitted to practice in this jurisdiction from “hold[ing] out to the public or otherwise represent[ing] that the lawyer is admitted to the practice of law in this jurisdiction.” ABA Formal Opinion 495 provides further guidance.

A lawyer practicing remotely from a local jurisdiction may not state or imply that the lawyer is licensed to practice law in the local jurisdiction. Again, information provided on websites, letterhead, business cards, or advertising would be indicia of whether a lawyer is “holding out” as practicing law in the local jurisdiction. If the lawyer’s website, letterhead, business cards, advertising, and the like clearly indicate the lawyer’s jurisdictional limitations, do not provide an address in the local jurisdiction, and do not offer to provide legal services in the local jurisdiction, the lawyer has not “held out” as prohibited by the rule.

Based on the language of Model Rule 5.5, ABA Opinion 495 concluded:

The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed. The Committee’s opinion is that, in the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.

The Wisconsin opinion concludes:

Based on the language of SCR 20:5.5, its purpose, and the other ethics opinions, we conclude that the Rule does not prohibit an out-of-state lawyer from representing clients from the state where the attorney is licensed even if the out-of-state lawyer does so from the lawyer’s private location in Wisconsin. However, in order to avoid engaging in the unauthorized practice of law, the out-of-state lawyer must not establish a public office in Wisconsin or solicit Wisconsin business unless otherwise authorized by law.

So, Wisconsin has joined other jurisdictions¹ in explicitly holding that lawyers who practice virtually in another jurisdiction from a physical location in Wisconsin are not engaged in the unauthorized practice in Wisconsin.

This does not say anything about the rules and laws of other jurisdictions, so this Wisconsin opinion does not permit a Wisconsin lawyer to practice virtually in Wisconsin while being physically present in another jurisdiction – that depends entirely on the other jurisdiction.

Wisconsin lawyers who want to pursue a remote work arrangement from another jurisdiction must determine the law of that jurisdiction. But the trend is clear, and it is highly unlikely that a state would take the position that remote work constitutes the unauthorized practice of law.

Endnotes

¹ See Utah Ethics Opinion 19-03 (2019) and Maine Ethics Opinion 189 (2005).