The Law of Work-from-Home: Bar Membership

Does a lawyer who works for a New Jersey firm on non-Florida matters, but who lives in Florida, need to be a member of the Florida Bar?

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From a Florida Supreme Court opinion released May 20, adopting an advisory opinion proposed by the Florida Bar:

Petitioner set forth the following facts in his request for advisory opinion (TAB A) and in his testimony at the public hearing (TAB B): He is licensed to practice law in New Jersey, New York, and before the United States Patent and Trademark Office (hereinafter "USPTO"). He is not licensed to practice law in Florida.

He recently retired from his position as chief IP counsel for a major U.S. Corporation. That position was in New Jersey. He moved from New Jersey to Florida. He started working as an attorney with a New Jersey law firm specializing in federal IP law. The firm has no offices in Florida and has no plans to expand its business to Florida. His professional office will be located at the firm's business address in New Jersey, although he will do most of his work from his Florida home using a personal computer securely connected to the firm's computer network.

In the conduct of his employment with the firm, he will not represent any Florida persons or entities and will not solicit any Florida clients. While working remotely from his Florida home, he will have no public presence or profile as an attorney in Florida. Neither he nor his firm will represent to anyone that he is a Florida attorney. Neither he nor his firm will advertise or otherwise inform the public of his remote work presence in Florida. The firm's letterhead and website, and his business cards will list no physical address for him other than the firm's business address in New Jersey and will identify him as "Of Counsel – Licensed only in NY, NJ and the USPTO."

The letterhead, website, and business cards will show that he can be contacted by phone or fax only at the firm's New Jersey phone and fax number. {Phone calls to his law firm and his extension are routed to his cell phone. While clients do not dial his cell phone number directly, Petitioner's cell phone has a New Jersey area code.} His professional email address will be the firm's domain.

His work at the firm will be limited to advice and counsel on federal IP rights issues in which no Florida law is implicated, such as questions of patent infringement and patent invalidity. He will not work on any issues that involve Florida courts or Florida property, and he will not give advice on Florida law.

At the hearing, Petitioner testified "we've tried to set up and utilize the technology in a fashion that essentially places me virtually in New Jersey. But for the fact that I'm physically sitting in a chair in a bedroom in Florida, every other aspect of what I do is no different than where I'm physically sitting in a chair in Eatontown, New Jersey and that's the way I tried to and have structured it so that the public sees a presence in, in Eatontown, New Jersey and no other presence." …

Rule 4-5.5(b)(1) of the Rules Regulating The Florida Bar provides that a lawyer who is not admitted to practice in Florida may not establish an office or other regular presence in Florida for the practice of law….

The facts raised in Petitioner's request, quite simply, do not implicate the unlicensed practice of law in Florida. Petitioner is not practicing Florida law or providing legal services for Florida residents. Nor is he or his law firm holding out to the public as having a Florida presence. As Petitioner testified, "we … tr[ied] to make sure that no Florida citizens, no Florida businesses, certainly not the Florida courts, would have any exposure to me or … the work I was doing."

All indicia point to Petitioner's practice of law as being in New Jersey, not in Florida…. [B]ased on the facts set forth in his request and hearing testimony, and since there is no attempt by Petitioner or his firm to create a public presence in Florida, Petitioner does not have a presence in Florida for the practice of law.

As this Court noted in The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980), "the single most important concern in the Court's defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation." Because Petitioner is not providing legal services to Florida clients, no Floridians are being harmed by Petitioner's activity and there are no interests of Floridians that need to be protected by this Court. {Under Rule 8.5(a) of the New Jersey Rules of Professional Conduct (TAB D), a lawyer admitted to practice in New Jersey is subject to the disciplinary authority of New Jersey regardless of where the lawyer's conduct occurs. Consequently, Petitioner's clients would be protected by the Office of Attorney Ethics, the investigative and prosecutorial arm of the Supreme Court of New Jersey.}

In May 2019, the Utah Ethics Advisory Opinion Committee (hereinafter, "UEAOC"), in Opinion No. 19-03, opined that an individual licensed in another state who establishes a home in Utah and practices law for clients from the state where the attorney is licensed and who neither solicits Utah clients nor establishes a public office in Utah is not engaged in the unauthorized practice of law (TAB E). In coming to this conclusion, the UEAOC found no case in any jurisdiction where an attorney was disciplined for practicing law out of a private residence for out-of-state clients located in the state where the attorney is licensed.

It also pointed out that the concern [under Utah's version of Rule 4-5.5] is that an attorney not establish an office or public presence in a jurisdiction where the attorney is not admitted, and that concern is based upon the need to protect the interests of potential clients in that jurisdiction. In paragraph 16 of its opinion, the UEAOC posed the following question: "[W]hat interest does the Utah State Bar have in regulating an out-of-state lawyer's practice for out-of-state clients simply because he has a private home in Utah? … [T]he answer is … none."

Like the UEAOC, the Standing Committee's concern is that the Petitioner does not establish an office or public presence in Florida for the practice of law. As discussed above, neither is occurring here. And in answering the same question posed by the UEAOC, it is the opinion of the Standing Committee that there is no interest that warrants regulating Petitioner's practice for his out-of-state clients under the circumstances described in his request simply because he has a private home in Florida.

In light of the current COVID-19 pandemic, the Standing Committee finds the written testimony of Florida-licensed attorney, Salomé J. Zikakis, to be particularly persuasive:

"I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.

"There are areas of the law that do not require being physically present, whether in a courtroom or a law office. Using the attorney's physical presence in Florida as the definitive criteria [sic] is inappropriate. So long as the attorney is not practicing Florida law, is not advertising that he practices Florida law, and creates no public presence or profile as a Florida attorney, then there is no UPL simply because the attorney is physically located in Florida. There is no harm to the public. These facts do not and should not constitute UPL in Florida." …

Petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law. Consequently, … it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.

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  1. I thought this was a solved problem. I remember talking to a lawyer at Axiom, the big legal outsourcing company, about a decade ago. The company wanted to serve 50 states (later, the world) while complying with unauthorized practice of law rules where the office is, where the client is, and even then where each lawyer’s home office is. The company believed it was fully legal in 50 states. I didn’t ask for details.

  2. How does this decision implicate New Hampshire v Massachusetts?

    1. Why would it? This is a Florida state Supreme Court decision concerning Florida state law regarding practice of law?

      1. Because the issue in that case will be a parallel one: permanent residences out of State, and workers working from there (NH), for businesses (though the businesses in question do not require licenses) in another State (Massachusetts). I agree with the Florida decision, and were I on the Court I would send Massachuetts packing, but the matters under consideration are similar, and sometimes local decisions can influence higher decisions.

        1. New Hampshire v Massachusetts is a jurisdictional tax case, a fight over which state has jurisdiction over the worker’s income for income tax purposes.

          There is no interstate issue in the Florida case. It’s purely a matter of Florida state law.

          1. Yes, except the crux of the Florida court’s logic was that the “practice of law” was taking place in New Jersey. In NH v. MA, the New Hampshire resident is claiming that his work is being done in New Hampshire and that there’s no connection to MA other than the servers.

            It is a parallel issue.

          2. What do you think the situation is if New Jersey now claims that the lawyer’s income should be taxed as New Jersey income?

            1. The work was done in Florida. It willbe taxed as Florida income. The clients and the licensed advice took place in New Jersey.

  3. As far as the PTO, there is a Supreme Court case on point.
    Sperry v. Florida, 373 U.S. 379 (1963)
    https://supreme.justia.com/cases/federal/us/373/379/

    If someone just wants to practice before the PTO, he can do so from his house or office, and does not need to be admitted to the local bar.
    (Yes, I get this lawyer wanted to do more than that.)

  4. Other than the fact that the decision seems to elevate the purpose of the law above the text, this seems to be a correct decision. Not every jurisdiction is so sensible.

    1. To do otherwise gives an absurd result. Otherwise, bringing your briefcase with you on an out-of-state vacation would be a violation of the law. I’m certain Hawaii and Nevada would love the fines they could impose, but no rational person would think that’s what was intended.

      What I don’t get was how anyone was opposing the motion.

      1. I was wondering how this came before the court myself.
        Perhaps the lawyer or the firm asked for an advisory opinion?

        1. Yes, exactly, the lawyer asked the state bar for an advisory opinion.

      2. I assume the distinction being drawn was that the NJ attorney in question actually had a home in Florida as opposed to simply being on vacation.

        Still, I think it is a correct result.

        1. I don’t think that’s much of a distinction. If working in the state on a legal matter in another state is unauthorized practice of law, it’s unauthorized whether you did it for 1 day or 365 days.

          1. Except that the amounts of time matter a lot to taxing authorities in lots of cases. Q: In what state are you a resident, when you own and use two homes? A: The one where you spent 6 months + 1 day.

            I rent my house out for a movie shoot. I owe no taxes on the first 14 days. But, starting on Day 15, I owe taxes for what I earn from the rental after that, for the rest of that calendar year.

            It seems perfectly reasonable (IMO) to treat work done out-of-state on a short-term basis as one thing, and work done over an extended period as another thing. I can see this as making state tax collection a lot more complicated for workers who do this. But this happens already…professional athletes have to file, say, 12 state tax returns, if they are paid for games played within those 12 states in a season. It’s why their accountants earn the big bucks, I reckon.

  5. To find otherwise would mean that a lawyer on a business trip to florida, or taking the kids to Disneyworld, could not answer a business question via his phone, answer an email, etc

    1. Which would not be a bad thing, for lawyers on vacation. “Sorry, can’t speak now. Unauthorized practice of law. Have to go say hi to Mickey Mouse.”

    2. I agree with you. But, on the other hand; if that lawyer committed malpractice while working remotely in Florida, she certainly could be sued in Florida courts. (I assume, anyway…it would seem perverse to do the actual harmful act in State X, but somehow be immune from a State X lawsuit.)

  6. Yes, this. The rule under discussion provides that a lawyer who is not admitted to practice in Florida may not establish an office or other regular presence in Florida for the practice of law.

    I think vacation work pretty clearly doesn’t count.

  7. I hope he didn’t quit his job at shoprite. He may need it.

  8. Next question: Does he pay income tax in Florida or New Jersey?

    1. Since FL does not have an income tax, the question is whether he pays state income taxes at all.

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