Providing Pro Bono Out-of-State During the Pandemic

[vc_row row_type=”row” use_row_as_full_screen_section=”no” type=”full_width” text_align=”left” background_animation=”none” css_animation=””][vc_column][vc_column_text]The coronavirus pandemic has shifted how and where we work. This has raised ethical questions for attorneys working remotely, but also has presented new opportunities to engage in pro bono work in local communities.

Checking the Ethics Rules
Attorneys in the U.S. must be licensed to practice law by a state agency, or receive a limited authorization to serve as in-house counsel for an employer.  (See ABA Model Rule 5.5 and the rules that govern registered in-house counsel).

During the COVID-19 pandemic, many lawyers are practicing law at home, but home may not be in the state in which they are licensed.  For instance, lawyers living in Washington, D.C. may be members of the bar of, and employed in, Maryland or Virginia, while lawyers living in New Jersey or Connecticut may be members of the bar of, and employed in, New York.

These circumstances raise the question whether lawyers practicing law at home due to the COVID-19 pandemic were engaged in unauthorized practice of law. A number of jurisdictions have sought to address this. For example, on March 23, 2020, just a week or two after many lawyers began working from home fulltime, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law issued Opinion 24-20: Teleworking from Home and the COVID-19 Pandemic, stating that “In light of the widespread use of telework occasioned by the need to practice social distancing to slow the spread of the novel coronavirus COVID-19, …persons who are not District of Columbia bar members may practice law from personal residences or other locations within the boundaries of the District of Columbia under Rule 49(c)(13) (“Incidental and Temporary Practice”)” in limited circumstances.

The American Bar Association (ABA) and state bar associations have also issued guidance on issues such as the security of client data, protecting client confidentiality, supervision, and other issues that arose due to COVID-related teleworking.

On December 16, 2020, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495 on “Lawyers Working Remotely,” confirming that attorneys “may remotely practice the law of the jurisdictions in which they are licensed while physically present in” another jurisdiction, so long as the attorneys do not hold themselves out as licensed to practice in the jurisdiction in which they are physically present, and the local jurisdiction does not consider the attorneys’ conduct to be unlicensed or unauthorized practice of law. On March 10, 2021, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 498 on “Virtual Practice,” to provide long-awaited guidance on other aspects of the virtual practice of law, including the duties of technological competence, diligence, communication, confidentiality, and supervision, under the Model Rules of Professional Conduct.

How Does This Impact Pro Bono?
With many attorneys working from home in states where they may not be licensed, we encourage attorneys to consider whether they can engage in pro bono services in their local communities in accordance with local rules.

A number of jurisdictions permit non-locally licensed attorneys, who are active and in good standing in another state, to provide pro bono legal services. These rules may require the out-of-state attorney to apply for authorization before delivering the pro bono services, and they typically impose restrictions, including that the attorney be “associated with” or “affiliated with” approved legal services organizations, work under supervision of a locally licensed attorney, and, in some instances, abide by limits on the time period in which the attorney can practice pro bono under the rule. However, they offer a pathway to non-locally licensed lawyers to engage in pro bono.

You can find cites to these rules in the updated Guide to Multijurisdictional Practice in the U.S. and the interactive map on the CPBO website, which present rules that authorize non-locally-licensed in-house pro bono practice.

If you find yourself working remotely in a state in which you are not licensed to practice law, or are interested in potential opportunities to provide pro bono out-of-state, take a look at the rules in your jurisdiction and see whether there are opportunities to provide pro bono legal services that you may not have considered previously!  The need for pro bono legal services is tremendous, with the Legal Services Corporation reporting that “the pandemic has both increased the numbers of Americans falling into poverty and caused a surge in the[ir] legal needs,… particularly for low-income families facing job losses, evictions and other problems stemming from the pandemic.”  We ask you to join us, regardless of where you are located, in increasing access to justice through pro bono legal services.

*The information provided in this article, and all articles on the PBEye blog, does not, and is not intended to, constitute legal advice.