technology

I wrote a piece for the Connecticut Law Tribune about how telecommuting and taking conference calls from home can make lawyers run afoul of the unauthorized practice of law rules:

There are probably hundreds of lawyers who are licensed in New York and living in Fairfield County in Connecticut. It's become commonplace for these attorneys to log onto their home computers to work on legal documents on behalf of New York clients, to participate in late-night video­conferences from home, or to conduct other business as their commuter train rolls through Norwalk.

But now some lawyers are quietly voicing concerns that under Connecticut Practice Book rules they may be engaged in the unauthorized practice of law (UPL) if they live in Connecticut but are licensed exclusively in New York. One attorney recently told the Law Tribune he made sure to get sworn into the Connecticut bar because he has a home office in Greenwich out of which he serves New York clients.

So are lawyers with virtual offices in Greenwich violating Connecticut's Rules of Professional Conduct? How about someone who regularly telecommutes from a Stamford apartment and takes Metro-North to a Manhattan law firm only once a week? Does the definition of practice of law in Connecticut conflict with the modern realities of lawyering through videoconferencing and email?

"The Rules of Professional Conduct are lagging behind [technology]," said Dove A.E. Burns, a partner at Goldberg Segalla whose professional liability defense practice includes lawyers as clients.

Under Connecticut rules, "the practice of law is ministering to the legal needs of another person and applying legal principles and judgment to the circumstances and objectives of that person." Leslie Levin, a University of Connecticut School of Law professor who studies the legal profession and lawyer discipline, acknowledges that Connecticut does have a "very wide definition of what constitutes the practice of law," meaning that many work-related tasks a New York lawyer might perform from a Connecticut residence could be construed as practicing law.

Levin said that read in a commonsense way, the rule governing UPL, Rule 5.5, is addressing legal advice offered to Connecticut residents. But if it's taken literally, according to attorneys with expertise on ethics issues, many lawyers may be violating the rule. The good news, it would seem, is that disciplinary officials probably will not coming after them anytime soon.

There's no doubt attorneys can run afoul of the disciplinary rules if they are regularly giving advice to clients in a state in which they don't have a true presence, even if as a practical matter they only live a few miles across the border, said Burns. She pointed out that the Delaware Supreme Court recently suspended an attorney from practicing law for two years because he worked out of his home in Pennsylvania. His Delaware presence was a commercial space where his landlord's receptionist did little more than greet visitors and collect the attorney's mail.

Connecticut's UPL rule clearly bars attorneys from making false claims about their licensing status. You "can't hang up a shingle in Connecticut and hold yourself out as authorized to practice law in Connecticut," said Marcy Tench Stovall of Pullman & Comley, who represents attorneys in malpractice litigation and disciplinary matters.

From there, however, the matter becomes more nuanced, raising "philosophical questions," said Stovall, that lead lawyers to parse the meaning of words such as "continuous" and "temporary."

Consider this: In Connecticut, an attorney, even while just giving advice to clients in New York under his New York license, could violate Rule 5.5(b) of the Rules of Professional Conduct, Stovall said. Rule 5.5(b)(1) bans lawyers licensed in other states from establishing a "systematic and continuous presence" in Connecticut in order to practice law.

However, there is a "safe harbor" rule for attorneys licensed in New York or other jurisdictions and who are practicing law in Connecticut only a "temporary" basis. The safe harbor applies, according to the rule, if the lawyer is providing services that arise "out of or are substantially related to the legal services provided to an existing client of the lawyer's practice or in a jurisdiction in which the lawyer is admitted to practice."

But a Connecticut-dwelling attorney doing work for non-Connecticut clients technically could be breaking the rule if they regularly work at home or on their commute through Fairfield County on the way to New York.

"If you read the rule literally, you wouldn't be practicing law on a temporary basis and [thus] not entitled to the safe harbor," Stovall said. She added that, given the ease of long-distance communications in the Information Age, it would be an "absurd result" if a lawyer was disciplined for sitting in a Connecticut home and offering counsel to a New York client. That is a "reflection of how the rules can't keep up with how people practice," she said.

Mark Dubois, who was Connecticut's first chief disciplinary counsel and is now counsel at Geraghty & Bonnano in New London, noted that the Rules of Professional Conduct are based on a 19th-century world in which lawyers were representing clients in the same town. In that era, he said, attorneys from Hartford would never even be representing clients from New Haven, much less New York.

Dubois said many bar regulators judge UPL matters simply by applying the "where-is-your-butt" test. In other words, UPL is determined if an attorney is physically located in a place where he or she is not licensed to practice.

But Dubois said a small number of states have given regulators more flexibility to make judgment calls. Among them is Arizona, he said, where a regulator might try to distinguish between attorneys giving advice about Arizona law when they're not licensed in Arizona, and attorneys who happen to be temporarily staying in a Tucson hotel room who log into their New London computers and give advice to Connecticut clients.

Moving forward, he said, questions for regulators investigating possible UPL violations will include: "Where are you when you're doing [legal work]? Are you where the client is? Where is the predominant effect of your conduct felt? Is it where you are physically?"

While an attorney could be violating UPL rules while doing legal work on a business trip, regulators are unlikely to spend the effort to discipline them, Dubois said. He said they are more concerned about protecting consumers from attorneys who don't know what they're doing and from having their money stolen by dishonest lawyers.

Burns, who commutes from her home in Wilton to a Goldberg Segalla office in midtown Manhattan, agrees that attorneys who rely on technology to do business away from their formal law office have more pressing challenges than aggressive disciplinary officials.

If faced with a professional malpractice lawsuit, she said, lawyers run the risk that they could be violating their insurance policy's "standard of care" clause because they are giving advice about the laws of a state that they don't often work in. A malpractice insurance provider isn't going to like it if an attorney isn't keeping up with the practice of law in the state where she is licensed because she often practices from a remote locations, Burns said.

Then there's the whole matter of cybersecurity. A data breach of confidential information caused by accessing files from an out-of-office location poses a significant liability concern. Lawyers, said Burns, are responsible for maintaining client confidentially "regardless of the pitfalls and failings of technology."