MONTH-IN-BRIEF (Apr 2021)
Legal Opinions and Ethics
COVID-19 and the “Invisible” Lawyer
By Keith R. Fisher
Since the outbreak of the pandemic, lawyers have sequestered themselves and their loved ones in more secure locations to reduce the risk of contracting COVID-19, but they have continued to practice law during this period. In many cases, these relocations are to another jurisdiction (the “host jurisdiction”) where the lawyer is not licensed to practice; examples could include a summer home or a mountain cabin in a State other than the situs of the lawyer’s office. Thus a Boston lawyer might be practicing from her place in New Hampshire, Maine, or Vermont, or a Chicago lawyer might be practicing from his place in Wisconsin, Indiana, or Michigan. The ethics issue raised is whether this constitutes the unauthorized practice of law (“UPL”) in violation of Model Rule 5.5?
UPL is a notoriously tricky area, as a 2016 decision of the Minnesota Supreme Court upholding the discipline of a Colorado lawyer illustrates. That case did not even involve relocation or sequestration but merely e-mail. An experienced Colorado lawyer contacted a Minnesota lawyer via email to help his Minnesota in-laws resolve a Minnesota debt collection dispute, which he hoped to settle out of court. The e-mail indicated that if that effort was not successful, the Colorado lawyer intended to seek the help of local counsel. Opposing counsel in the matter, however, referred the Colorado lawyer to Minnesota disciplinary authorities. The Colorado lawyer was found to have engaged in UPL by e-mailing people in Minnesota, even though he (i) did not physically appear in Minnesota when dealing with opposing counsel, (ii) did not attempt to solicit Minnesota clients, (iii) did not hold himself out as practicing in Minnesota, and (iv) did not assist his in-laws with a legal issue beyond his licensed practice area.