PLANNING AHEAD: Can a lawyer practice out of place [Column]

As lawyers and clients develop relationships and then either the lawyer or the attorney moves out of state a common question arises  —  can the relationship continue or must it end at the state border? The question can become even more interesting as, when during COVID-19 disruptions, either or both of them operate remotely. The answer may sometimes depend on what activities are involved and in some cases where either or both of them now consider to be their permanent residence.

Anticipating this question, an organization to which I belong, the National Academy of Elder Law Attorneys (NAELA), published an article, “Aging Out of Place” by Josh Ard,  in their magazine, NAELA News,  Jan/Feb/Mar 2022 and provided examples. You can, of course, alternatively deal with attorneys who are admitted in multiple jurisdictions, although this can become both difficult and costly for the attorney. Also, as our office does, we maintain referral connections with attorneys throughout the country — mostly through NAELA so that, if a client requests answers to how a matter is handled in North Carolina, Florida, New York or California, for example, we have member attorneys to whom we might refer the client and the question while still holding on to the issue as it relates to the jurisdiction where we practice — Pennsylvania.

The introduction to the article focuses on the attorney’s issues stating:

“As they get closer to retirement, many attorneys would like to move to a different state while still maintaining their practice. One of the challenges is how to do that without violating professional conduct rules.”

(By the way, I have no intent to move to another state or to discontinue practice in Pennsylvania, so for those who are my clients, be assured.)

Attorneys moving and looking to be admitted to practice in another state. The article notes the process of becoming licensed in another jurisdiction can be expensive  (emphasis in the original) and time consuming. Sometimes applicants must retake all or part of the bar exam. Then there is the issue of reciprocity. “If jurisdiction A will not let licensed attorneys from jurisdiction B be admitted without examination, B will almost always engage in tit-for-tat retaliation.”  Florida, for instance, is noted as “a state notoriously tough on practice by attorneys from another state…”

Alternatives and Other Possibilities. The article notes that, fortunately there are other possibilities. I have already noted a referral network. If there is litigation, a process long recognized is introduction to the court by a local attorney in a process known as pro hac vice.Since much legal work does not involve litigation for other matters, here are some things to know.

Remote Practice. If, for instance a Pennsylvania licensed attorney is doing remote work on a Pennsylvania matter while in Florida, there should be no problem. “If a lawyer is working on legal matters on a plane, does anybody ask what state she was flying over? If she is on a phone call in a car, does it matter if she crosses  a state line? What about working on client matters using a computer while on vacation in another state? Why then should it matter if a lawyer works remotely from her home in a new state? …” An ABA opinion agrees.  Utah in an Ethics Opinion “puts it more bluntly: ‘What 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? And the answer is the same — none.’”

Considerations for Attorneys. Here are some general rules given for attorneys to avoid problems.— Never imply you are licensed in the new state and even better state that you are not.

— Never give any opinions about the laws of the new state or otherwise practice law.

— Never hold yourself out as representing clients from the new state.

— If possible, do relevant work electronically and do not meet people in person there.

Other Exceptions. Federal practice can be an exception to allow practice across state borders.

Finally, clients should know that documents such as wills and powers of attorney, for example, and others prepared in one state (such as Pennsylvania) are still valid when moving to another state. However, it is a good idea to have them reviewed by an attorney in the new state to be sure there are no important differences in taxation and other matters.

Janet Colliton, Esq., Colliton Elder Law Assocs., PC is a Certified Elder Law Attorney and limits her practice to elder law, retirement, life care, special needs, and estate planning and administration with offices at 790 East Market St., Suite 250, West Chester, 610-436-6674, [email protected] She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, co-founder of Life Transition Services, LLC, a service for families with long term care needs.

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