You Can Practice in Florida Remotely if You're Licensed in Another Jurisdiction, Court Says

You Can Practice in Florida Remotely if You’re Licensed in Another Jurisdiction, Court Says

Remote working has been a helpful change for many working professionals across a variety of industries. But lawyers practicing remotely in Florida and other states have worried for some time whether practicing their trade is legal or not. Many remote lawyers lack the licenses to practice in their new home states.

The American Bar Association has strict rules regarding where and how lawyers can practice law, especially if they aren’t licensed for specific jurisdictions or states. Fortunately for remote lawyers, the ABA recently released a ruling explaining the specifics of the rule and how they apply to remote workers in this new digital age.

What Does Model 5.5 State?

The American Bar Association’s Model Rule 5.5 essentially states that lawyers can’t practice law in a legal jurisdiction unless authorized by the rules. In other words, they can’t practice in jurisdictions where they don’t have the appropriate authority. In most cases, authority is gained by passing the state or jurisdiction bar exam.

For example, a Florida attorney cannot practice law in a Georgia city without taking the Georgia bar.

Additionally, Model Rule 5.5(b) states that lawyers can’t establish offices or other “systematic and continuous presence[s],” in the jurisdiction where they aren’t licensed to practice law. So lawyers can’t set up law offices in states where they aren’t licensed, either.

Why Have Some Lawyers Worried About Breaking the Law?

The COVID-19 pandemic has led many working professionals, including lawyers, to commute remotely to work. Remote workers now use digital platforms and telecommuting software to handle most of their job responsibilities.

Additionally, the pandemic has required many people to relocate. Certain lawyers may have relocated to Florida to continue their law practices online if they were unable to stay in their home states for financial reasons.

On the surface, these activities may seem to be in violation of ABA Model Rule 5.5. But the recent ruling by the ABA has clarified that it is not necessarily so. 

The ABA’s Ruling – What Does it Mean for Lawyers Practicing Remotely in Florida?

The ABA issued its ruling on December 16, 2020, and came to a beneficial conclusion for remote legal workers. If a lawyer only deals with cases in their original jurisdiction, they aren’t breaking the law. This is true even if they carry out that work remotely from another jurisdiction. 

Here’s a basic example:

  • A lawyer originally based in Virginia moves to Florida because of financial problems due to the pandemic
  • They continue to practice law and handle Virginia cases while remotely working from Florida

They do not carry out legal duties in Florida, where they are not licensed. So they are not breaking the law and can continue their practice without worrying.

Therefore, lawyers working remotely in Florida and other states have nothing to worry about. They just can’t handle cases in their new local jurisdictions.

What About Establishing Offices?

Regarding Model Rule 5.5(b), the ABA’s opinion settled the full meaning of “establish” as seen in the rule. The ABA concluded that a lawyer doesn’t technically “create” an office if they are only “incidentally” in a certain area or jurisdiction.

For example, imagine a Georgia lawyer who came to Florida because of COVID-19 or another reason. They then began to practice remotely. They would not necessarily have set up a Florida legal office and would not violate Model Rule 5.5(b).

The court stated that remotely practicing attorneys need to take reasonable steps to make their jurisdiction clear. For example, a lawyer’s website, business cards, advertising, and other promotional material must clearly indicate the practicing lawyer’s jurisdictional limits.

So a Tennessee lawyer practicing in Florida remotely would still need their website to show their Tennessee law office’s address and information.

This ruling is further reinforced by Model Rule 5.5(c)(4). This states that lawyers can provide their legal services on a temporary basis in a new local jurisdiction. The circumstances surrounding their move to a new location must be reasonable. Additionally, they can only provide legal services for parties in their licensed jurisdictions.

What Does This Mean for Remote Lawyers?

At this time, it means that remote lawyers can continue offering their legal services to people in their home jurisdictions. However, most remote lawyers will still want to return home sooner rather than later. Temporary remote practice seems to be the key takeaway from the model rule.

And remember, remote lawyers still have the same duty to supervise subordinate lawyers and non-lawyer staff members, even if they are all working remotely.

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Arizona Court Says Non-Lawyers Can Invest in Law Firm

Arizona Court Says Non-Lawyers Can Invest in Law Firm

Many states are making changes to business ethics that impact lawyers. Arizona approved its first ABS or Alternative Business Structure for a law firm last month. The changes approved by the Arizona Supreme Court last year became effective on January 1, 2021. 

For lawyers and other professionals, the changes in the ethics rules were substantial. The changes in the ethics rules are intended to make access to legal services easier and more affordable for the public. The changes were recommended by the Arizona Task Force on the Delivery of Legal Services

Non-Lawyer Ownership or Investment in Law Firms

Arizona is only the second state to amend its ethics rules to allow non-lawyers to own or invest in a law firm. 

Just before Arizona took that step, the Utah Supreme Court approved reforms that included non-lawyer ownership or investment in law firms. The two-year pilot program in Utah began on August 14, 2020. Legal providers must seek approval if they wish to try new ways of providing legal services to clients. 

Unlike the regulatory sandbox approach used by Utah, the state of Arizona requires non-traditional legal businesses to go through a rigorous application process. They must obtain approval before they can begin operating. The ABS must also have an internal compliance attorney to comply with the code of conduct required for an ABS.

The task force argued that allowing alternative business structures would allow more access to the legal system by promoting competition in a free market. It would also allow legal service providers to form practices with other professionals, which could benefit the public in many ways. For example, there could be ABS models that provide less expensive legal services than hiring an attorney traditionally.

The changes allow attorneys who practice in other professions to combine their practices. For example, an attorney with a business degree may offer both business consulting services and legal services by creating an ABS. A tax accountant and a lawyer could create an ABS to offer a variety of professional and legal services related to tax law. 

Creation of Legal Paraprofessionals

The Arizona Supreme Court also modified the rules of practice to create Legal Paraprofessionals or LPs. These individuals are non-lawyers authorized to provide limited legal services to the public. LPs may also go to court with their client on matters related to their services. 

LPs practice as affiliate members of the state bar. They are subject to the same discipline process and ethical rules as attorneys. LPs may offer legal services related to several areas of law, including family law, landlord-tenant disputes, administrative law, debt collection, and other limited criminal and civil matters.

To become an LP, a person must:

  • Meet specific education requirements
  • Have a certain level of experience
  • Pass a professional examination 
  • Pass a fitness and character process 

LPs would be similar to a Nurse Practitioner in the medical field. Arizona LPs will be able to provide more legal services than LPs in other states. The goal is to provide the public with affordable legal services to ensure a greater number of people have access to legal services. 

Questions Exist About the New Changes 

Many people support the changes in Arizona’s ethics laws that allow for alternative business structures and LPs. However, some opponents argue against the changes. 

The group that reviewed the changes believes that lawyers have an ethical duty to ensure the public has access to legal services. If the rules hampered access to legal services, there is an ethical responsibility to change those rules. 

Vice Chief Justice Ann Scott Timmer chaired the task force. In a statement, vice Chief Justice Timmer said she was excited to see the launch of the first ABS entities. She stated that she was confident the arrangements would benefit the public and the legal community. 

However, Court of Appeals Division One Chief Judge Peter Swann strongly disagreed with removing the rule. Chief Judge Swann also served on the task force. He stated that addressing the systemic issues that make access to the courts expensive would be a better approach to reform. 

Chief Judge Swann argued that the attorney-client relationship is a sacred fiduciary relationship. Sharing that relationship with investors might be a conflict. He wrote that getting rid of the ethics rule and adding non-lawyers would make Arizona “a leader in the race to the bottom of legal ethics.”

Only time will reveal whether these changes benefit individuals and the legal system. You can find more information about legal service reforms in Arizona on the Arizona Judicial Branch’s website

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ABA Issues Opinion on Virtual Law Practice

ABA Issues Opinion on Virtual Law Practice

When the COVID-19 pandemic began in March of 2020, businesses had to make adjustments. Law firms were no exception. 

Instead of working in the office, attorneys and legal staff worked remotely from home. Someone typically reported to the office to pick up mail or organize files, but most communication and work were handled virtually from multiple off-site locations.

Together, we stumbled through 2020 as best we could, adapting to constant changes and trying to learn from our mistakes. It took a full year for the American Bar Association (ABA) to issue an opinion on the virtual law practice. 

Because our country is still in the grips of a global pandemic, many law firms may continue practicing virtually, at least in part. Some clients may be hesitant to come into the office. Therefore, attorneys may have no choice but to continue virtual consultations to secure new clients. 

Because we do not know how the pandemic will evolve, it is a good idea for lawyers to read and analyze the ABA’s opinion now. We never know when we might be required to operate virtually again, and we do not want to make the same mistakes regarding business ethics and technology.

What is a Virtual Practice?

The ABA Formal Opinion 498, released on March 10, 2021, defines virtual practice as a “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” The ABA Model Rules of Professional Conduct allow for virtual practices. 

However, the opinion points out that while lawyers can practice law virtually, there are several ethical duties to consider when using technology. The areas of confidentiality, competence, and supervision are of particular importance. 

The opinion discusses some of the issues related to virtual practice. It points out that the ABA Model Rules of Professional Conduct provide minimum requirements and some suggestions of best practices for a virtual practice.

Commonly Implicated Model Rules of Professional Conduct

The opinion discusses specific Model rules related to:

Competence, Diligence, and Communication 

The Model Rules require that attorneys keep informed about changes in the law and its practice. This duty includes the benefits and risks of relevant technology. 

Therefore, attorneys should take steps to ensure they are aware of changes. They need to comply with continuing legal education requirements and research the matter independently. 

Attorneys also must ensure they exercise due diligence on behalf of their clients. Lawyers must communicate regularly with their clients regarding the status of their matters. 

Lawyers have a duty to pursue a matter, despite any obstruction, opposition, or personal inconvenience. Clients have a right to be consulted about their case and receive the information they request.

Attorneys need to develop plans that ensure they can comply with these requirements, even if they practice virtually.

Confidentiality

Model Rule 1.6 prohibits lawyers from revealing information related to representing a client. The duty persists even if an attorney is practicing virtually. There must be informed consent, a specific exception, or implied authorization for the attorney to discuss client matters.

An attorney must make reasonable steps to protect client confidentiality. 

According to the ABA Formal Opinion, a lawyer should consider:

  • The sensitivity of the information
  • The cost of employing additional safeguards
  • Likelihood of disclosure if no other safeguards are installed
  • The extent to which the safeguards negatively impact the representation of clients
  • The difficulty in applying the safeguards 

A virtual practice adds additional concerns related to confidentiality. Transmitting documents virtually poses a risk of disclosure. Discussing information online could result in breaches of confidential information. Additional steps may be required to protect confidentiality in a virtual practice.

Supervision

Lawyers have a duty to ensure nonlawyer staff members and subordinate lawyers comply with ethics rules. Practicing virtually does not lessen the attorney’s duty. 

An attorney should instruct employees about ethics, especially related to confidentiality. Employees should understand the rules about safeguarding information. They must avoid inadvertent disclosure or unauthorized access to client information. 

Other Matters Covered by the ABA Formal Opinion for Virtual Practice

There are several other topics covered in the ABA Formal Opinion, including:

  • Hardware and software systems
  • Accessing client data and files
  • Videoconferencing and virtual meeting platforms
  • Virtual data and document exchange platforms
  • Virtual Assistants, Smart Speakers, and other listening-enabled devices
  • Supervision

The opinion also discusses the possible limitations of virtual practice. Virtual practices may not be suitable for all areas of law or law firms. 

The Bottom Line

Attorneys are expected to follow all ethics rules. They must continue fulfilling their duty of care. These requirements exist regardless of whether they are virtual or meet with clients in a traditional law firm setting. It is up to each attorney to ensure compliance with the rules for themselves and their staff members. 

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Florida Bar Issues Complaint About "Pitbull" Lawyer Ads

Florida Bar Issues Complaint About “Pitbull” Lawyer Ads

A lawyer in Florida is in trouble with the Florida Bar because he used a pit bull in his advertising material. The Florida Bar filed a complaint on March 2, 2021, alleging several violations of the Rules Regulating The Florida Bar

The Pitbull Lawyer at Taylor Law

According to the complaint, Robert Laurence Pelletier is an of counsel lawyer with David Taylor Law. Mr. Pelletier advertised as the “Pitbull Lawyer at Taylor Law” on numerous platforms. 

The platforms included online websites, blogs, Facebook, and an advertising wrap on a boat. He also used the name “Pitbull” on his business cards and Mr. Taylor’s office door.

The complaint states that Mr. Pelletier was informed on three dates of the violations of the Rules Regulating The Florida Bar. He was told to remove or correct them. The complaint alleges that he corrected the office door and business cards, but he failed to correct the other instances. 

The complaint alleges that Mr. Pelletier did not remove the boat wrap until the grievance committee set the case for review. He only partially corrected his website. 

What is Wrong with Using Pitbull in an Attorneys Advertisement?

The Florida Supreme Court has ruled on this matter in a previous case. 

In a 2005 case, the Supreme Court ruled that the use of “Pit Bull” and a pit bull’s image harmed the legal profession. It stated that using the phrase and image in advertising did not assist the public in making an informed decision before hiring an attorney.

The order stated that devices that invoke the breed of dog known as pit bull demeans lawyers. Therefore, it harms the legal professional and the public’s confidence and trust in the justice system.

Specific Violations of the Regulations 

The complaint against Mr. Pelletier sets forth in detail the specific Rules that the Florida Bar alleges Mr. Pelletier violated with his “Pitbull” advertisements.

The alleged violations are:

  • Rule 4-7.12 Required Content 
  • Rule 4-7.13 Inherently and Deceptive Misleading Advertisements 
  • Rule 4-7.15  Unduly Intrusive or Manipulative Advertisements
  • Rule 4-7.17 Payment for Advertising and Promotion
  • Rule 4-7.19 Evaluation of Advertisements 

The Florida Bar is asking the court to discipline Mr. Pelletier according to the provisions of the Rules Regulating The Florida Bar.

Lawyers Have Strict Rules Regarding Advertising

Marketing and advertising are important tools for attorneys to generate business. However, the need to generate business is weighed against the public interest. 

For example, misleading and false claims intended to solicit business violate the public interest. Attorneys and law firms must ensure that all statements and claims can be verified.

Each state sets ethics rules for attorney advertising within the state. The ethics rules for advertising vary by state. The Ethics and Advertising Department of The Florida Bar produced a Handbook on Lawyer Advertising and Solicitation to help lawyers avoid mistakes and errors in advertising that could lead to an ethics complaint. 

Some states may not allow an attorney or law firm to make a comparative statement, while other states may not have specific rules regarding these states. You might not be able to claim to be the best personal injury law firm in one state, but you could in another state. Likewise, many states prohibit lawyers from claiming to be experts if they do not hold a specialty certification in that specific area of law.

Attorneys and law firms are responsible for researching and abiding by the ethics rules in each state in which they advertise. For national law firms, advertising can be challenging. Local law firms only need to know the ethics laws that govern advertising in their state.

Check Before You Pay for Advertising Material 

A  comprehensive advertising campaign can be expensive. If you hire a firm to create and design a marketing campaign, the cost increases. Before investing your time and funds into marketing and advertising, review the ethics rules and guidelines for attorney and law firm advertising.

Even a small, solo practitioner can spend a significant amount of money on business cards, letterhead, website design, and other advertising materials. You do not want to spend the money to find out that it all must be changed because it violates ethics rules for advertising.

Whenever you are in doubt, submit your material to the Ethics and Advertising Department of The Florida Bar for consideration. If there is a problem with your advertising or marketing campaign, it is better to catch it before launching the campaign or using the advertising materials. You do not want to face an ethics complaint and potential disciplinary actions. 

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