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For attorneys living and working on opposite sides of the Hudson or Delaware rivers, the question arises, especially during the remote working arrangements of the COVID-19 pandemic, whether lawyers may work out of one’s home, in one state, even though they are licensed only in a different state, where their office is located. While the forced nature of remote practice highlighted the issue, the ethical concerns are not new. ABA Rule 5.5, and in large part New Jersey’s equivalent version in RPC 5.5(b), provide safe harbors that include temporary practice that relates to appearance in another state for purposes of discovery relating to a case, an arbitration, or a transaction for an existing client, in the lawyer’s home jurisdiction. However, the issue of what is or is not temporary practice is not defined under the rule. The New Jersey Supreme Court had occasion to address this to an extent in In re Jackman, 165 NJ 580 (2000). In that case, a non-New Jersey admitted associate working physically in New Jersey at a New Jersey law firm, was held to be engaged in the practice of law where he was “handling mergers and acquisitions, and general corporate law matters, [and who] did prepare and sign legal documents, counsel clients, negotiate with other attorneys on behalf of his clients, and bill for his time as a Senior Associate” was engaged in the practice of law. While recognizing that the occasional de minimis activity was not of concern, the court nonetheless had previously wondered in In re Dalena, 157 NJ 242 (1999), how often a New Jersey attorney could allow a non-admitted New Jersey attorney to use their office before they are deemed aiding and abetting the unauthorized practice of law in New Jersey.

While RPC 5.5(b)(3) and its safe harbors were added effective January 1, 2004, they do not address the specific question of non-temporary, continuous practice of law in New Jersey by a non-admitted New Jersey lawyer who lives here.

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