Remote Practice: in California, the Big Question Remains Unanswered

The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has written a proposed ethics opinion on remote practice that is now out for public comment, formal opinion interim number 20-0004. The scope of the issues addressed by the opinion is broadly framed: “What are a California lawyer’s ethical duties when working remotely?” The opinion digest responds broadly:

Remote practice does not alter a lawyer’s ethical duties under the California

Rules of Professional Conduct and the State Bar Act. Managerial lawyers must

implement reasonable measures, policies, and practices to ensure continued

compliance with these rules in a remote working environment, with a particular

focus on the duties of confidentiality, technology competence, communication,

and supervision.

Proposed formal opinion 2020-0004

The impetus for the opinion, like other opinions regarding remote practice, over the last two years (ABA formal opinion 495, New Jersey opinion 59/742, District of Columbia opinion 24-20) is the widespread adoption of remote work during the pandemic. The transition to remote work is hardly new; it has been going on ever since advanced information technology made geography irrelevant around 1995. California was one of the first states to address the phenomenon in the seminal Birbrower case in 1998, albeit in dicta that was not really related to the facts of the case:

Our definition does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state.   Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive.   For example, one may practice law in the state in violation of section 6125 although not physically present  here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.   Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law “in California” whenever that person practices California law anywhere, or “virtually” enters the state by telephone, fax, e-mail, or satellite.  (See e.g., Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543, 86 Cal.Rptr. 673, 469 P.2d 353 (Baron ) [“practice law” does not encompass all professional activities].)   Indeed, we disapprove Ring, supra, 70 P.2d 281, 26 Cal.App.2d Supp. 768, and its progeny to the extent the cases are inconsistent with our discussion.   We must decide each case on its individual facts.

Birbrower, Montalbano, Condon & Frank v. Superior Ct. (1998) 17 Cal. 4th 119, 128–29

Since the case had to do with New York lawyers who were physically, not virtually, present in California, the rationale behind this dicta is difficult to discern on the surface. Some, including amicus counsel for the petitioner New York law firm, thought the case presented an opportunity to undermine the outdated patchwork of individual jurisdictions jealously protecting their turf, a position opposed by the amicus for the client trying to get out of paying their bill, the State Bar of California, who advocated for a traditional California protectionist approach ( I was present at the oral argument.) The Birbrower dicta, accurate as it was, probably created more confusion than insight.

The existing trend toward remote work accelerated, by necessity, during the pandemic, and even the State Bar of California was part of the trend. Once work becomes remote, it can become truly remote by moving beyond a state boundary line. Remote work raises a number of issues not directly connected with the multi-jurisdictional practice (MJP) problem. The problem is that licensure is still handled by that patchwork of jurisdictions long after this approach stopped making sense.

These non-MJP problems are well addressed by 2020-0004. But 2020-0004 says only this about the MJP problem:

California licensed lawyers practicing California law remotely in another
state where they are not licensed should consult the multijurisdictional practice and unauthorized practice of law rules and authorities of the state where they are physically present.35 The ABA and some other state bar and local ethics committees have issued opinions regarding unauthorized practice of law considerations for attorneys remotely practicing the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted.

Proposed formal opinion 2020-0004, at page 7.

The Committee does helpfully attach a long footnote citing the many opinions from other jurisdictions that address remote practice, including MJP. But for lawyers licensed in other jurisdictions who are practicing remotely while in California, the Committee offers no guidance.

This is a big question. There are hundreds, perhaps thousands, of lawyers, admitted in other jurisdictions who are physically present in California and “virtually” practicing in their licensed jurisdictions to adopt the Birbrower language. The only guidance those lawyers have now is the limited guidance provided by California Rule of Professional Conduct 5.5(b): “A lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.” Emphasis added.

What exactly does this language mean? Is practicing New York law for your New York clients from your home office in California a “systemic or continuous presence”? Can that lawyer use his residence address in California or establish a post office box in California for use in their “virtual practice” without “holding themselves out” as entitled to practice in California? Does this type of “virtual practice” violate their licensing jurisdiction’s version of ABA Model Rule 5.5(a)?: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”

These are questions that need to be answered. But COPRAC is unable to. By direction of the Board of Governors (now Board of Trustees) in 1992, COPRAC cannot opine on questions involving the unauthorized practice of law. But if not COPRAC then who? Text or comments to Rule 5.5 could be added to clarify the meaning but in the normal course, those comments would be vetted through COPRAC. Would consideration of such clarifying language violate the Board’s directive? The Legislature could direct the State Bar to draft an amend Rule 5.5 or adopt a new Rule of Professional Conduct to submit to the California Supreme Court for adoption or a statute clarifying what constitutes the unauthorized practice of law. Given California’s protectionist proclivity, such Legislative activity seems very unlikely. There seems to be no procedural mechanism to directly request the Supreme Court to adopt new Rules of Professional Conduct.

So it appears that there is no way to get this question answered until some sweeping reform of multi-jurisdictional practice occurs to conform to reality. In the meantime, non-California licensed lawyers virtually practicing in California will continue a sort of shadow existence.

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