The Oklahoma Bar Journal August 2023

in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.” 10 The committee stopped short of giving attorneys the green light, qualifying its opinion that such practice is only permitted “ if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law .” 11 While it does not appear an Oklahoma court or the Oklahoma Bar Association have addressed the issue, those states that have appear to be in agreement that remote prac tice alone does not raise concern. As the Utah State Bar recognized, “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.” 12 But as with most conduct that implicates the unauthorized practice of law, what constitutes “the practice of law” is murky, and it is not hard to imagine a point at which an all-virtual practice could tread into unchar tered waters unintentionally. The Oklahoma Supreme Court has declined to “define[ ] ‘practice of law’ to include specific acts,” noting instead that its “decisions definitely spell out the concept of the practice of law” as “the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent.” 13 “The ‘distinc tion between law practice and that which is not,’” the court reasoned, “may be determined only from a consideration of the acts of service performed in each case.” 14

Conduct, “A lawyer who is not admitted to practice in this juris diction shall not: (1) … establish an office or other systematic and continuous presence in this juris diction for the practice of law; or (2) hold out to the public or oth erwise represent that the lawyer is admitted to practice law in this jurisdiction.” 5 “The definition of the practice of law is established by law and varies from one juris diction to another.” 6 “Presence may be systematic and continuous even if the lawyer is not physically present here .” 7 The purpose of the rule is to “protect[ ] the public against rendition of legal services by unqualified persons.” 8 Though not guaranteed, law yers are probably safe to work remotely from a state in which they are not licensed as long as their work is related to matters pending in the state in which they are licensed, or they are providing legal services to residents of the state in which they are licensed. Nine months into the pandemic, the ABA Committee on Ethics and Professional Responsibility issued a formal opinion, opining that “[l]awyers may remotely prac tice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted … 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 jurisdic tion.” 9 In doing so, the committee reasoned that protecting the public from unqualified practitioners – the purpose of Rule 5.5 – “is not served by prohibiting a lawyer from practicing the law of a jurisdiction

There can be little dispute that an attorney who drafts pleadings for a client is engaging in the practice of law. 15 The Oklahoma Supreme Court has concluded that attorneys who draft contracts or complete deeds 16 or negotiate a settlement agreement with an insurance company 17 are practic ing law. But what about reviewing contracts? Analyzing and advising clients on routine legal issues? Or negotiating a debt? – all tasks that can be accomplished from afar. Also up for debate is what is meant by a “systematic and con tinuous presence.” The Utah State Bar Ethics Advisory Committee observed, “It seems clear that the out-of-state attorney who lives in Utah but continues to handle cases for clients from the state where the attorney is licensed has not established an office or ‘other systematic and continuous pres ence for practicing law in [Utah] a jurisdiction in which the lawyer is not licensed.’” The sending of an email or two likely does not rise to that level either. 18 But what if an unlicensed lawyer’s contacts with a state go beyond that? A leading case on interstate practice was handed down by the California Supreme Court in 1998, and despite the changes in tech nology that have transformed the legal practice in the last 25 years, the opinion still informs the issues practitioners are grappling with today. In Birbrower, Montalbano, Condon & Frank v. Superior Court , the California Supreme Court found a New York-based firm engaged in the unauthorized practice of law 19 when its attor neys, who were not licensed in the state, represented a California client in California to negotiate a settlement and prepare for

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

8 | AUGUST 2023

THE OKLAHOMA BAR JOURNAL