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Ethics Corner Article

Dear Ethics Committee:

The American Bar Association recently issued an opinion regarding lawyers working remotely in a state in which they are not licensed to practice. What are the relevant ethics rules in New Hampshire for this situation?

Given the technological advances in recent years, an increasing number of lawyers are working from their homes or locations other than their normal offices. This has only increased since the onset of the COVID-19 pandemic, which likely inspired the American Bar Association Opinion you reference. This is a good opportunity to review the New Hampshire ethics rules that apply to lawyers working remotely, more specifically working from home in a different state than where they are licensed to practice law.

The New Hampshire Rules of Professional Conduct (the “Rules”) embrace the reality that an increasing number of attorneys work remotely and may do so permanently. Rule 5.5 states that “[a] lawyer admitted in another United States jurisdiction … may provide legal services through an office or other systematic and continuous presence in this jurisdiction that … relate solely to the law of a jurisdiction in which the lawyer is admitted.” Rule 5.5(d).

Subsection (d)(3) of Rule 5.5 differs from Model Rule 5.5, in allowing lawyers to be physically present in New Hampshire (the “Local Jurisdiction”) while practicing the law solely of another jurisdiction (the “Licensed Jurisdiction”). This clause “clarif[ies] that a lawyer who is licensed in another jurisdiction but does not practice New Hampshire law need not obtain a New Hampshire license to practice law solely because the lawyer is present in New Hampshire.” Ethics Committee Comment 3 to Rule 5.5.

While an out-of-state lawyer may establish an office or systematic and continuous presence in New Hampshire to practice the law of their Licensed Jurisdiction, that lawyer may not “hold out to the public or otherwise represent that the lawyer is admitted to practice the law of [New Hampshire].” Rule 5.5(b). Importantly, a lawyer that practices law in New Hampshire, even if they do not practice the law of New Hampshire, may be subject to the disciplinary authority of the New Hampshire Supreme Court. See Rule 8.5(a).

Recently the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495 on December 16, 2020 (the “ABA Opinion”), concerning American Bar Association Model Rule 5.5 (“Model Rule 5.5”). Like the New Hampshire version of Rule 5.5, the ABA Opinion addresses the issue of whether a lawyer may practice the law of a Licensed Jurisdiction while being physically present in a Local Jurisdiction. While New Hampshire’s version of Rule 5.5 focuses on the nature of the legal services being provided in the Local Jurisdiction, the ABA Model Rule 5.5 and the ABA Opinion focus on the character of the lawyer’s presence in the Local Jurisdiction.

The ABA Opinion interprets Model Rule 5.5 as permitting a lawyer to be in the Local Jurisdiction while practicing the law of the Licensed Jurisdiction, as long as: 1) the Local Jurisdiction has not determined such conduct is the unlicensed or unauthorized practice of law; 2) the lawyer does not establish an office or systematic presence in the Local Jurisdiction; 3) the lawyer does not hold themselves out to be available to perform legal services in the Local Jurisdiction; and 4) the lawyer does not actually perform legal services for matters in the Local Jurisdiction unless otherwise authorized.

The ABA Opinion carves out an exception to the “systematic presence” concept in order to accommodate the increasing number of lawyers working remotely. The ABA Opinion specifically states that a lawyer’s mere physical presence does not create a ‘systematic presence’ because as long as the lawyer does not hold themselves out to the Local Jurisdiction, they are “for all intents and purposes invisible as a lawyer to a local jurisdiction.” ABA Opinion. The ABA contrasts this ‘invisible’ presence to a lawyer who lists their local address and contact information in the Local Jurisdiction on letterhead or business cards, and states that such actions “may be said to have established an office or a systematic and continuous presence.” ABA Opinion.

New Hampshire has been generous in allowing lawyers to live in New Hampshire while working remotely for clients in jurisdictions where they are licensed. With the recently published ABA Formal Opinion, it appears that other jurisdictions are following suit and embracing the increasingly remote practice of law.

It should be noted that New Hampshire Rule 5.5 only applies to out-of-state lawyers who are practicing in New Hampshire. New Hampshire lawyers who wish to practice in a state where they are not licensed should consult the ethics rules of the Local Jurisdiction.

This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its May 20, 2021 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing: Robin E. Knippers at reknippers@nhba.org.