On December 16, 2020 the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495. Here is the synopsis:
Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.
The opinion does not address confidentiality, use of technology, or other issues that may arise in remote working situations. Read the full opinion here.
If you’re an Oregon lawyer, the best legal research tools are only a mouse-click away on the OSB website. Best of all, they’re free thanks to the revamped BarBooks platform.
From the Member Login link on the OSB home page, select Enter BarBooks, and choose Explore. In addition to the familiar OSB Legal Publications – 44 books that cover everything from Administering Oregon Estates to Worker’s Compensation – you will also find:
Other OSB Publications
Disciplinary Board Reporter (1998 – 2015)
Oregon Formal Ethics Opinions (2016 rev.)
Oregon Rules of Professional Conduct Annotated (2016 edition)
Oregon Legislation Highlights (2005 – 2016)
UPL Advisory Opinions (2013-2014)
OSB Seminar Handbooks
A whopping 132 handbooks from OSB CLEs. Here are just a few of the topics covered:
Advanced Estate Planning
Advanced Topics in Nonprofit Law
Bankruptcy Basics: The ABCs of Filing Chapter 13
Basic Estate Planning and Administration
Defending DUII Cases in Oregon
Deposition Techniques and Strategy with David Markowitz
Drafting Family Law Documents
Evolving Issues of Labor and Employment Law in the Modern Workplace
Fundamentals of Oregon Civil Trial Procedure
Intellectual Property Review
Legal Ethics—Best Practices
Litigation Institute and Retreat
Northwest Bankruptcy Institute
Real Estate and Land Use Fall Forum
Click the nifty download button to save any of these publications or handbooks to your desktop.
While logged into BarBooks, you can also search the Oregon Statutory Time Limitations Handbook from the Professional Liability Fund (PLF). BUT, the best place to download PLF handbooks is still the PLF website, where you have four to choose from – all available at no cost to Oregon lawyers:
A Guide to Setting Up and Running Your Law Office
A Guide to Setting Up and Using Your Lawyer Trust Account
Oregon Statutory Time Limitations Handbook
Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death
First and foremost, UPL is an actionable offense. Only active members of the bar may practice law or hold themselves out as qualified to practice law. The bar takes UPL accusations very seriously and will pursue appropriate civil and criminal remedies to stop it.
But how does this affect staff? Isn’t it fairly easy to avoid crossing the line if you are a law office professional working for a lawyer in a traditional brick and mortar firm? Hmmm – – – maybe yes, maybe no.
Appearing in court or before administrative agencies
Giving legal advice or a legal opinion
Telling clients their “rights,” including the time limits of their claim
Answering “why” when the client seeks the reasoning behind a particular outcome
Interpreting documents or information for a client
Making a judgment call
Drafting legal documents for another person without supervision
Selecting legal documents for another person without supervision
Giving answers based on rules, statutes, or case law
Accepting a case
Declining a case
What Can Staff Say and Do?
Convey Facts or Simple Statements
A lawyer may properly instruct her legal assistant to telephone a client to say that the lawyer has researched the client’s question and the answer is “no.”
The lawyer may also ask the legal assistant to perform the legal research and suggest the answer; after reviewing the research and confirming the assistant’s conclusions, the lawyer may then instruct the assistant to relay the lawyer’s conclusion.
The lawyer may not, however, authorize the assistant to research the question and answer the client’s question on her own.
When in doubt, trust your gut instinct and say nothing.
Elaborate on your answer
Attempt to answer a different question
Generally speaking, documents must be reviewed and approved by the lawyer before they are sent out of the office or otherwise acted upon.
However, transmittal letters that do not require any legal advice may be sent out without review and approval of the lawyer (provided the transmittal letter was initiated at the lawyer’s request).
Tactful Responses to Insistent Clients
Know and stick to your boundaries.
Let the client know the lawyer’s schedule. If the lawyer is in trial, deposition, or attending a settlement conference, provide this information to the client. Have a strategy in place to handle calls during extended lawyer absences: will the lawyer be able to call in for messages at the end of the day? Should you forward messages via e-mail? Obtain after-hours telephone numbers from clients? Plan ahead and keep the lines of communication open between lawyer and staff.
Offer to take a detailed message and relay it to the lawyer. This small gesture can be immensely useful: the client feels he is being heard, the lawyer will know what the client wants, and you may get information that will help you take the next step.
Get permission from the lawyer to relay the facts to the client or draft a transmittal letter/e-mail for the lawyer’s review.
Call the client back if he or she is waiting for a return call from the lawyer and the lawyer is delayed.
Use your best client relations skills by exhibiting patience, understanding, and empathy. Language such as “I can help you by getting this information to Ms. Attorney” can make a big difference.
Introduce staff at the initial client meeting and explain their role.
Provide staff with professional business cards.
Give clients appropriate information about your staff on the firm Web site or in the firm brochure.
A Final Word
In sum, avoiding UPL is mostly about two things: teamwork and shaping client expectations. Both are within our control.