If a man never contradicts himself, the reason must be that he virtually never says anything at all?
-Erwin Schrödinger-
I must admit that new additions to this blog have fallen by the wayside. I could come up with lots of reasons why that may be so, but laziness and procrastination are probably most to blame. Having exorcised that demon, I can now produce this material which is so very personal to me.
I have, for several years, been dealing with personal family situations in both Tennessee and some great distance from my home while continuing to maintain my legal practice. I cannot divulge the “other” jurisdiction, because that is where I intend to continue my practice remotely for Tennessee clients and disclosure may violate certain ethical obligations that I must adhere to . . . and when an ethics lawyer violates the rules of ethics, it can’t be good. Some of you, however, already know that place.
Let’s back up a bit, shall we? ABA Model Rule 5.5, since its adoption in 2002, allowed lawyers to temporarily practice in jurisdictions in which they were unlicensed in certain situations. Who’s kidding who? The ABA Model Rules provide guidance to lawyers only and are not enforceable. However, many states adopted the rule including Tennessee in 2010.
The Covid-19 pandemic (2020-2023) resulted in nationwide lockdowns forcing lawyers to practice remotely from their homes, often in jurisdictions in which they were not licensed to practice. This prompted the ABA to issue Formal Ethics Opinion 495—Lawyers Working Remotely. Many states adopted some version of the rule, including the one in which I will be moving permanently.
The rule essentially states that a lawyer does not establish a systematic and continuous presence in a jurisdiction for the practice of law when the lawyer works remotely for clients so long as the lawyer does not hold himself out to the public as being admitted to practice law in the unlicensed jurisdiction and otherwise remains invisible. That is, the lawyer may not list an office address in the unlicensed jurisdiction on a website, e-mail signature, business card, or any other form of advertising such as social media. This opinion seems overly protectionist, as is often the case, and is explained away as some sort of protection for consumers of legal services. In reality, there has always been a rule on the books in every jurisdiction which prohibits the unauthorized practice of law and, by and large, most attorneys would never jeopardize their license by offering legal services in a jurisdiction in which they are not licensed. These rule changes benefit attorneys as they provide guidance for working remotely, but the changes will not stop a lawyer from breaking the law if that is their desire.
Okay, where was I? Oh yeah. In an effort to comply with the rules, I needed a way to receive mail in the unlicensed jurisdiction I would be practicing. So, after some research, I did what other lawyers do and created a virtual mailing address with a Nashville address. Some company scans my mail and sends it to me electronically. No problem, right? But what about other ethical obligations?
RPC 7.1(a) states that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” RPC 7.1(b) states that “any communication made under this Rule shall include the name and contact information of at least one lawyer or law firm (that’s me and only me) responsible for its content.” Comment [2] states that “a truthful statement is also misleading if there is a substantial likelihood that it would lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.”
My virtual mailing address would lead any reasonable person to believe that I practice in or around the Nashville, Tennessee area. What other conclusion could they draw based upon that communication? They certainly would not know that I am many hundreds of miles away. Potential clients would assume I could assist with litigation in the Tennessee area when that would be impossible to do unless the potential client were willing to pay travel expenses, hotel, meals, etc. in addition to legal fees. I would normally dissuade clients from doing so as it is not cost effective and there are other very good lawyers that could handle their case. It gets worse.
I recently attended a hearing before the Tennessee Board of Law Examiners which is literally a block away from my virtual mailing address. Out of curiosity, I walked to that address to see what my (virtual) office looked like but could not gain entrance without a passkey. I scrolled through a list of suite numbers so that I could buzz up to my office address, but it was not even listed among the various businesses in the building. Wow!!
Additionally, anyone with basic investigation skills could find out where I physically reside and practice law. There is a recorded property deed, voter registration status, property tax exemption, and people search website listings completely out of my control. The state and county governments where I am moving are, on one hand, holding me out to the public as being a resident, but on the other prohibit me from such disclosure. Funny thing.
This could all be easily resolved by requiring lawyers practicing remotely in foreign jurisdictions to include a disclaimer on all forms of communication that state that the lawyer is not authorized to practice law in the jurisdiction and work remotely solely for clients in State X, Y, or Z.
In the meantime, if someone finds my (virtual) office, please let me know.