Delaware Bar weighs in on the ethics of remote work

Nicole Black, BridgeTower Media Newswires

In March of 2020, the transition to remote work was sudden for most law firms. Many were wholly unprepared for the sudden and unexpected shift, but over time most firms managed to cobble together remote working systems that were functional, albeit clunky. Over time, firms have refined the remote working tools that they use, and upgraded to more permanent solutions.

 Now that we’re well into the second year of the pandemic, remote work has become commonplace. Many firms are continuing to support their attorneys and staff who work remotely, especially now that there is an upward trend in infection rates in many parts of the country.

 Only time will tell if remote work will be a permanent fixture in law firms, but in the short term at least, it’s an unavoidable part of the practice of law. For that reason, lawyers across the country have been asking their state bars to weigh in on various ethical issues that arise with remote work. One common question that is often raised is whether lawyers working remotely can permissibly practice law from a jurisdiction in which they’re not licensed, or if doing so constitutes the unauthorized practice of law.

 Since the onset of the pandemic, a number of different ethics committees have weighed in on this issue, including those in D.C. and Florida. Most recently, Delaware jumped into the fray when it handed down Delaware State Bar Association Committee on Professional Ethics Formal Opinion 2021-1 in July.

 At issue in this opinion was “whether an attorney licensed in Delaware may practice Delaware law while working remotely from another jurisdiction in which the lawyer is not licensed, such as from a home office, without engaging in the unauthorized practice.”

 At the outset, the committee clarified that its analysis would not address the situation where an attorney who is not licensed in Delaware seeks to represent Delaware clients from an office situated outside the state of Delaware. Instead, the sole focus of the opinion is on the fact pattern where an attorney licensed in Delaware works remotely from another state in which that attorney is not licensed on matters relating to Delaware law.

In reaching its determination, the committee considered the goal of the prohibition of the unauthorized practice of law, which is to protect legal consumers from unlicensed and unqualified lawyers. The committee explained that barring lawyers licensed in Delaware from practicing law remotely would not forward that goal: “This purpose is not served by barring Delaware-licensed lawyers from practicing the law of Delaware, for clients with matters in Delaware, just because such lawyers are physically located in a local jurisdiction where they are not licensed…”

However, the committee noted one important exception to the general proposition that Delaware lawyers may practice law remotely from out of the state — namely that doing so is only permissible as long as “the law of the local jurisdiction does not prohibit such conduct, and such lawyers do not hold themselves out publicly as a lawyer in that jurisdiction or offer to or accept representation of clients in that jurisdiction...”

With that caveat, the committee gave Delaware lawyers working remotely from another jurisdiction the green light to do so. This opinion and the conclusion reached is part of a growing trend wherein ethics committees are acknowledging the realities of 21st century practice.

More than a decade ago, cloud computing software arrived on the scene, and made it possible for lawyers to work from just about anywhere. Notably, it took a worldwide pandemic to force various ethics committees to consider many of the ethical issues that arise when lawyers work remotely, but as far as I’m concerned, better late than never.

Now that ethics committees are falling in line behind the concept of remote lawyering, I fully expect that even when the pandemic ends, lawyers will continue to enjoy the benefits of working remotely from states in which they’re not licensed. And even better, they’ll rest easy knowing that whenever they choose to do so, they’ll be in full compliance with their ethical obligations.

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 Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software. She is the nationally recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@ mycase.com.