Man & Woman working in remote office on the beach

The American Dream – Remotely Practice Law

Can lawyers remotely practice law? It’s something all of us dream of – living on the beach or in the mountains, while remotely practicing law in a court located in a much glamorous place. Work in the city, but instead of just living in the mountains and driving in each day, we actually work from the mountains as well.

Taking this fantasy a step further, I could be the sole attorney in Graham.Law‘s satellite office on the beach in Cancun, and hang out there while appearing by video in Colorado Courts to represent my family law clients. And since the Colorado Court of Appeals just upheld the legality of video hearings, there is currently no impediment to an attorney who wishes to remotely practice law.

OK, back to the real world. As fun as it would be to live on the beach, even the most disciplined of us would eventually suffer from motivational issues. Plus we have kids in school, pets, a house, cars, etc. Plus, we’re a law firm with other attorneys and employees – it’s hard to build collegiality, and share professional ideas if we’re all over the world. In short, we have roots in Colorado Springs, and responsibilities, and cannot change our lifestyles to live elsewhere and remotely practice law in Colorado.

But there are some lawyers who may be able to get away with that – someone without school-age kids, perhaps a semi-retired sole practitioner who works part-time, putting in an occasional court appearance for just a few clients. Over the years, I’ve dealt with attorneys who were licensed in Colorado, but living elsewhere. And while they did not formally enter a court appearance on behalf of their client, they assisted their clients in preparing court forms, and negotiated with me.

With major corporations such as Google allowing tens of thousands of employees to work remotely, this telecommuting raises issues all kinds of thorny issues, such as cities or states trying to tax employees who live out-of-state but are doing the same job remotely they used to do within city limits. Notably, as discussed in this article, New York will tax you: “An employee whose principal office is in New York State but who is working outside of the state during the pandemic will generally remain subject to New York State income tax.”

We’ll let the financial and tax gurus figure out the tax issues – the issue near & dear to the hearts of lawyers is whether we can remotely practice law in Colorado while living or staying elsewhere.

Remote Practice of Law Raises Ethical & Legal Issues

Now, out-of-state attorneys may even be able to enter court appearances on behalf of their clients. Last month, the American Bar Association issued Formal Opinion 495, which addresses an issue unique to professionals licensed by a state – can we practice in the state where we’re licensed, while physically present in a different state?

The ABA has concluded that it is ethically permissible to do so, as long as the location where we are physically present does not prohibit the practice:

“Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction.”

ABA Formal Opinion 495

Telecommuting is Not Establishing Office

Most states have adopted the American Bar Association’s Model Rules of Professional Conduct. And per ABA Model Rule 5.5(b)(1), an attorney may not ” establish an office or other systematic and continuous presence in this jurisdiction for the practice of law” unless licensed where he is practicing.

However, Formal Opinion 495 relies upon the ABA’s conclusion that, without more, merely working remotely from one state in the courts of another state where the attorney is licensed does not constitute establishing an office. This means the attorney cannot advise clients on matters pertaining tot hat state’s laws, hold himself out to the public in that other jurisdiction where he’s not licensed by advertising there, or using such address on websites, letterhead or business cards.

In other words, keep a low profile in that state, and then “the lawyer’s physical presence in the local jurisdiction is incidental, it is not for the practice of law.”

There is an important caveat to this ethics opinion – the lawyer will have to make sure that the remote practice of law does not violate the laws of the place where she is physically present. That’s less likely to be a concern while on the beaches of the Mayan Riviera than while staying in another state with its own ethics rules governing the practice of law.

Colorado Allows Attorneys to Remotely Practice Law

In Colorado, lawyers are licensed and regulated by the Supreme Court, which has established the Office of Attorney Regulation Counsel (OARC). In a November 2020 newsletter, the OARC discussed the remote practice of law from a Colorado perspective.

Remotely practice law vis video in Colorado CourtsRemotely practice law vis video in Colorado Courts

While the discussion is not a formal ethics opinion, the OARC is generally okay with an attorney physically present in Colorado who is not licensed in Colorado, as long as that attorney only appears in courts of the other state where she is licensed:

“OARC generally does not interpret the Supreme Court’s rules governing attorneys to necessarily require Colorado licensure if the resident lawyers are engaged in a state law practice based on the attorney’s jurisdiction of licensure when that practice does not require appearances in Colorado courts or application of Colorado law.”

As the same OARC newsletter also references ABA Formal Opinion 495, it is safe to assume that an attorney living in Colorado, but not licensed in Colorado, should follow the ABA guidelines.

End of Covid-19, End of Remotely Practicing Law?

While the U.S. is currently near peak cases and deaths from Coronavirus, vaccine distribution is ramping up. By all accounts, most Americans who want the vaccine should be able to get it by spring or summer of 2021. Thereafter, with sufficient herd immunity, the virus may become a manageable fact of life, like the flu, that can be mostly mitigated by vaccine.

So before we attorneys start scoping out beachfront property, once Covid is “over”, chances are remote hearings will dramatically decrease in use. Some judges may allow an occasional brief appearance by video from an out-of-town counsel at brief status conferences, and witnesses can also appear remotely, much as they did prior to Covid. But at some point this year, Courts will reopen for normal business, and all those lawyers in Cancun will have to come home!

Award-Winning Colorado Family Law Firm, Actually in Colorado!

The attorneys and staff from Graham.LawThe attorneys and staff from Graham.Law

U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.

For more information about our top-rated El Paso County family law firm, contact us by filling out our contact form, calling us at (719) 630-1123 to set up a free consult, or click on:

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