In this article we examine two diverging strands of a single theme: developments in the regulation of remote working. One strand, following the historical pattern of state-by-state regulation of lawyers, demonstrates the problematic nature of state rulemaking. The second strand points towards the possibility of a common-sense national solution. The underlying problem addressed within both strands is whether, and in what circumstances, it constitutes the unauthorized practice of law (UPL) for a lawyer to reside and work remotely while physically located in a jurisdiction where the lawyer is not admitted. That the problem exists at all is the necessary result of the state-based regulation of lawyers based on the geography of where they are located. That problem was brought into high relief with the onset of the COVID-19 pandemic, with lawyers working not only outside their offices, but frequently from distant locations in states where they were not admitted. But the problem has not abated as the pandemic has waned; on the contrary, that trend has become a norm for many practitioners as a matter of choice (not always with graceful acceptance by their law firms).

State-Based Solutions to the Remote Working Phenomenon

Even before the onset of the pandemic, this issue had been addressed by a few states. For instance, Virginia issued Va. Ethics Op. 1856 (2011; Supreme Court approval 2016) accepting that the mere physical presence in the state of lawyers using technology to work out of their offices in their states of admission would not constitute UPL provided that the lawyer did not hold himself or herself out as being admitted in Virginia. Since the onset of the pandemic, a substantial number of states, but still a minority, have issued similar opinions. (According to the New York City Bar Association, Arizona, Colorado, Minnesota, New Hampshire, North Carolina, and Ohio have temporary practice rules which permit remote practice. The bars in Florida, Maine, Utah, Virginia, and New Jersey have issued advisory opinions interpreting their respective temporary practice rules to permit remote practice.) The problem—as usual in these situations—is that the scope of the forbearance from treating these activities as UPL varies significantly from state to state. For instance, some states add the proviso to their opinions that lawyers working remotely must refrain not only from holding themselves out as lawyers but also from accepting work from clients residing in the state (even if the matter has no other connection with the state) or from advising on the law of the state, while some of the opinions are silent on these additional conditions. While these restrictions do not appear to be unduly burdensome, they in fact pose significant risks for lawyers and their firms. Since UPL complaints are frequently made by opposing counsel, if a remote working lawyer is noticed to have violated one of these provisions, an adversary can cause grief both to the individual and the law firm in the form of a complaint. And firms have no way of monitoring compliance other than to state the rules.