Attorney Telecommuting

The reasons why a law firm might be attracted to telecommuting arrangements are varied. For example, an aging rainmaker, only admitted to the District of Columbia Bar, may want to move to his vacation home on Jekyll Island, GA, and continue to practice. The spouse of a valued associate may be transferred to the West Coast, and the firm may want the associate to keep working on a big case in the firm's home-office jurisdiction, the only jurisdiction where the associate is licensed to practice law. A new partner may have business development opportunities in her childhood hometown, in a state where she is not licensed to practice and where the law firm doesn't have an office. A firm might want to dip its toe into a foreign market, using a lawyer or a marketing specialist, without formally opening an office there. These are four examples of typical circumstances where the firm and the attorney might be interested in a telecommuting arrangement.

In this article, I explore some of the risks that a law firm needs to consider in deciding whether to permit or encourage lawyers to telecommute. These include operational risks, while others raise liability, ethical, or unauthorized practice of law ('UPL') issues. I then offer some practical points to consider in addressing these risks.

Operational and Liability Issues

Many of the operational and liability risks inherent in telecommuting arrangements are not unique to law firms. Whenever an employee or partner is working on a regular or permanent basis in a remote location, away from co-workers and managers, there are potential downsides to consider. Supervision and oversight, for example, are much more difficult. So is quality control and maintaining collegial relationships. Especially for associates and newer partners ' for whom networking and mentoring opportunities are crucial ' telecommuting can contribute significantly to the firm's risk that an attorney, out alone on the proverbial island, will make a serious mistake or not develop as expected.

Consider, as well, the precedent that is created when an employer permits some (but not others) to telecommute. Precedent like this can be viewed by co-workers as favoritism, and can have a negative impact upon employee morale. Precedent like this can also lead to tricky discrimination cases. In such cases, management may be required to justify ' by articulating legitimate and non-discriminatory reasons ' why someone within a protected classification under EEO laws was not permitted to telecommute, while someone outside the protected classification was. In addition, once a single, solitary person is allowed to telecommute, an important Americans With Disabilities Act ('ADA') defense can be seriously compromised. In that regard, in defending a disability discrimination case, it is much more difficult to argue successfully that accommodating the disabled worker, by allowing him or her to telecommute from home, poses an undue hardship. Courts and agencies would ask the hard question, if an employer could afford to do it in one case, why couldn't telecommuting be allowed for the disabled worker?

Finally, be aware of state statutes (in Maryland, for example) that require out-of-state limited liability partnerships and corporations to register with a state agency before doing business in the state. Depending upon the law firm's structure, the firm and/or the telecommuting lawyer may need to take care of this detail, as well as other local requirements (such as tax laws) to avoid significant civil and criminal exposure. This particular risk is even more serious when the telecommuting attorney or marketing specialist will be located in a foreign country. In some cases, the difficulty of even determining how to comply with the foreign country's legal requirements can be quite formidable.

Ethical and Unauthorized Practice of Law Issues

The operational and liability risks mentioned previously can also raise ethical issues for both the telecommuting attorney and the law firm. Modern technology is a wonderful phenomenon, but if the telecommuting lawyer doesn't have backup assistance and the quality of his or her work product becomes a problem, the ethical rules requiring competence and diligence ' as well as the rule requiring adequate communications with the client ' may be implicated. Similarly, the firm may be required to comply with attorney advertising rules in the jurisdiction where the telecommuting lawyer is located. As a final example, the ethics rule requiring a partner to supervise his or her subordinates can be more difficult to satisfy if the telecommuting lawyer is an associate.

The UPL risks can be even more significant. There has not been much attention devoted to the issue so far in articles or published grievance decisions. But decisions addressing another wonder of technology ' namely, the Internet ' may be instructive. Many jurisdictions are very protective of in-state practitioners. They frown upon out-of-state law firms soliciting business, or otherwise communicating within the protective jurisdiction's borders, through websites and other computer techniques. This precedent may signal that bar authorities will not be receptive to telecommuting, unless the lawyer is licensed to practice in the jurisdiction. Some states may permit a telecommuting attorney to waive into the local bar without much difficulty, but others may require the lawyer to take and pass a local bar exam. Especially for the aging rainmaker, the prospect of
a bar exam may prove to be unacceptable. Moreover, particularly in egregious cases, law firm colleagues of the telecommuting attorney who aid and assist activities found to be in violation of UPL statutes or ethics principles may in many jurisdictions themselves be charged with unethical conduct under applicable grievance rules.

Practical Suggestions

The most important suggestion that I have to make is to designate one person or committee to sort through these issues. If the firm has an executive committee and/or a managing partner, that committee or partner can designate someone ' typically, the ethics partner or general counsel ' to investigate options and make recommendations. Such a strategy will help to achieve consistency in a decidedly cutting-edge area of the law.

Another important suggestion is that the firm should consider these various issues before the telecommuting arrangement is up and running. The steps I describe below can be taken to reduce the risk of a UPL finding or ethics violation, but this is an emerging and uncertain area of the law. In some circumstances, asking the local bar authorities for an advisory opinion ' before the fact ' may be appropriate. In other circumstances, many firms are reluctant to request such advisory opinions for a variety of reasons. But the worst case scenario is having to respond to a letter from local authorities after the aging rainmaker has been living in and practicing law out of his vacation home (in a jurisdiction where he's not licensed) for 18 months.

Short of requiring the telecommuting lawyer to become admitted to practice in the jurisdiction where he or she desires to operate, here are some steps to consider to possibly reduce the risk of a UPL finding or an ethical violation:

• Do not permit the attorney to provide any legal services within the jurisdiction, other than working from home for law firm clients with issues outside the jurisdiction.
• Do not permit the telecommuting lawyer to solicit any business within the jurisdiction.
• Prohibit the lawyer from contacting clients within the state, except for telephone, fax, or e-mail contacts with clients outside the state. In particular, do not permit the attorney to conduct meetings with any clients or prospective clients within the state. Also, do not allow the attorney to receive communications from any clients within the state.

The law firm should not generate any marketing, business, or other materials that provide contact or other information indicating that the attorney is located in the jurisdiction where he or she is not admitted to practice. All marketing, business and other information should list the telecommuting attorney's principal office within the firm, where the attorney is licensed to practice. Most notably, the attorney should have no business card, letterhead, or website information indicating that he or she has any presence in a jurisdiction where the telecommuting lawyer is not admitted to practice.

The law firm should have no telephone number or mailing address within the jurisdiction where the telecommuting lawyer is located. That lawyer should use the letterhead, telephone number, and business cards of his or her principal firm office. Anyone telephoning the lawyer should only be able to do so through the firm's offices, and the call can then roll over or be transferred to the lawyer's home office. Similarly, mail and e-mail should be routed to the firm's offices and then re-routed to the telecommuting attorney.

The underlying goal of the steps outlined above is simple. To the outside world, the telecommuting attorney should appear as though he or she is practicing out of the principal office where the attorney is licensed to practice. The more seamless the flow of communication, to and from the attorney, the better. Employers in other industries have used this strategy for years. Some examples that readily come to mind include telemarketing firms with call centers in India and computer companies with repair technicians located abroad. Even some American legal research firms apparently employ law clerks located overseas. For law firms and their telecommuting lawyers, however, implementation of a seamless system is important not only for marketing purposes. Indeed, such a system is of crucial importance to avoid UPL charges and ethical violations. Otherwise, what looked at first sight like a bridge over troubled waters will turn out to be a long walk on a short pier.

Jeffrey P. Ayres, a member of this newsletter's Board of Editors, is a partner at Venable LLP, with offices in New York, California, Washington, DC, Maryland, and Virginia. For many years, Mr. Ayres has chaired Venable's Ethics Committee. He regularly advises management (including law firms) on ethics and employment issues. He can be reached at [email protected].

Telecommuting is all the rage in many sectors of our economy. With increasing regularity, lawyers and their firms alike are participating in this trend. Modern technology is a wonderful thing, and telecommuting permits firms (law and other types) to spread their tentacles into far-off uncharted waters. For attorneys and law firms, is telecommuting a bridge over troubled waters, or a long walk on a short pier? That is the question I address in this article.

Before You Commit

Law firms and their attorneys should consider myriad issues before committing to a telecommuting arrangement. As I discuss in this article, provided that the telecommuting remains intra-state, most of the ethics and unauthorized practice of law issues remain manageable. Of course, intra-state telecommuting still raises practical and liability issues. Moreover, as soon as the telecommuting attorney crosses state lines to practice in a jurisdiction where he or she is not admitted, the thorny nature of all these issues intensifies exponentially.

The reasons why a law firm might be attracted to telecommuting arrangements are varied. For example, an aging rainmaker, only admitted to the District of Columbia Bar, may want to move to his vacation home on Jekyll Island, GA, and continue to practice. The spouse of a valued associate may be transferred to the West Coast, and the firm may want the associate to keep working on a big case in the firm's home-office jurisdiction, the only jurisdiction where the associate is licensed to practice law. A new partner may have business development opportunities in her childhood hometown, in a state where she is not licensed to practice and where the law firm doesn't have an office. A firm might want to dip its toe into a foreign market, using a lawyer or a marketing specialist, without formally opening an office there. These are four examples of typical circumstances where the firm and the attorney might be interested in a telecommuting arrangement.

In this article, I explore some of the risks that a law firm needs to consider in deciding whether to permit or encourage lawyers to telecommute. These include operational risks, while others raise liability, ethical, or unauthorized practice of law ('UPL') issues. I then offer some practical points to consider in addressing these risks.

Operational and Liability Issues

Many of the operational and liability risks inherent in telecommuting arrangements are not unique to law firms. Whenever an employee or partner is working on a regular or permanent basis in a remote location, away from co-workers and managers, there are potential downsides to consider. Supervision and oversight, for example, are much more difficult. So is quality control and maintaining collegial relationships. Especially for associates and newer partners ' for whom networking and mentoring opportunities are crucial ' telecommuting can contribute significantly to the firm's risk that an attorney, out alone on the proverbial island, will make a serious mistake or not develop as expected.

Consider, as well, the precedent that is created when an employer permits some (but not others) to telecommute. Precedent like this can be viewed by co-workers as favoritism, and can have a negative impact upon employee morale. Precedent like this can also lead to tricky discrimination cases. In such cases, management may be required to justify ' by articulating legitimate and non-discriminatory reasons ' why someone within a protected classification under EEO laws was not permitted to telecommute, while someone outside the protected classification was. In addition, once a single, solitary person is allowed to telecommute, an important Americans With Disabilities Act ('ADA') defense can be seriously compromised. In that regard, in defending a disability discrimination case, it is much more difficult to argue successfully that accommodating the disabled worker, by allowing him or her to telecommute from home, poses an undue hardship. Courts and agencies would ask the hard question, if an employer could afford to do it in one case, why couldn't telecommuting be allowed for the disabled worker?

Finally, be aware of state statutes (in Maryland, for example) that require out-of-state limited liability partnerships and corporations to register with a state agency before doing business in the state. Depending upon the law firm's structure, the firm and/or the telecommuting lawyer may need to take care of this detail, as well as other local requirements (such as tax laws) to avoid significant civil and criminal exposure. This particular risk is even more serious when the telecommuting attorney or marketing specialist will be located in a foreign country. In some cases, the difficulty of even determining how to comply with the foreign country's legal requirements can be quite formidable.

Ethical and Unauthorized Practice of Law Issues

The operational and liability risks mentioned previously can also raise ethical issues for both the telecommuting attorney and the law firm. Modern technology is a wonderful phenomenon, but if the telecommuting lawyer doesn't have backup assistance and the quality of his or her work product becomes a problem, the ethical rules requiring competence and diligence ' as well as the rule requiring adequate communications with the client ' may be implicated. Similarly, the firm may be required to comply with attorney advertising rules in the jurisdiction where the telecommuting lawyer is located. As a final example, the ethics rule requiring a partner to supervise his or her subordinates can be more difficult to satisfy if the telecommuting lawyer is an associate.

The UPL risks can be even more significant. There has not been much attention devoted to the issue so far in articles or published grievance decisions. But decisions addressing another wonder of technology ' namely, the Internet ' may be instructive. Many jurisdictions are very protective of in-state practitioners. They frown upon out-of-state law firms soliciting business, or otherwise communicating within the protective jurisdiction's borders, through websites and other computer techniques. This precedent may signal that bar authorities will not be receptive to telecommuting, unless the lawyer is licensed to practice in the jurisdiction. Some states may permit a telecommuting attorney to waive into the local bar without much difficulty, but others may require the lawyer to take and pass a local bar exam. Especially for the aging rainmaker, the prospect of
a bar exam may prove to be unacceptable. Moreover, particularly in egregious cases, law firm colleagues of the telecommuting attorney who aid and assist activities found to be in violation of UPL statutes or ethics principles may in many jurisdictions themselves be charged with unethical conduct under applicable grievance rules.

Practical Suggestions

The most important suggestion that I have to make is to designate one person or committee to sort through these issues. If the firm has an executive committee and/or a managing partner, that committee or partner can designate someone ' typically, the ethics partner or general counsel ' to investigate options and make recommendations. Such a strategy will help to achieve consistency in a decidedly cutting-edge area of the law.

Another important suggestion is that the firm should consider these various issues before the telecommuting arrangement is up and running. The steps I describe below can be taken to reduce the risk of a UPL finding or ethics violation, but this is an emerging and uncertain area of the law. In some circumstances, asking the local bar authorities for an advisory opinion ' before the fact ' may be appropriate. In other circumstances, many firms are reluctant to request such advisory opinions for a variety of reasons. But the worst case scenario is having to respond to a letter from local authorities after the aging rainmaker has been living in and practicing law out of his vacation home (in a jurisdiction where he's not licensed) for 18 months.

Short of requiring the telecommuting lawyer to become admitted to practice in the jurisdiction where he or she desires to operate, here are some steps to consider to possibly reduce the risk of a UPL finding or an ethical violation:

• Do not permit the attorney to provide any legal services within the jurisdiction, other than working from home for law firm clients with issues outside the jurisdiction.
• Do not permit the telecommuting lawyer to solicit any business within the jurisdiction.
• Prohibit the lawyer from contacting clients within the state, except for telephone, fax, or e-mail contacts with clients outside the state. In particular, do not permit the attorney to conduct meetings with any clients or prospective clients within the state. Also, do not allow the attorney to receive communications from any clients within the state.

The law firm should not generate any marketing, business, or other materials that provide contact or other information indicating that the attorney is located in the jurisdiction where he or she is not admitted to practice. All marketing, business and other information should list the telecommuting attorney's principal office within the firm, where the attorney is licensed to practice. Most notably, the attorney should have no business card, letterhead, or website information indicating that he or she has any presence in a jurisdiction where the telecommuting lawyer is not admitted to practice.

The law firm should have no telephone number or mailing address within the jurisdiction where the telecommuting lawyer is located. That lawyer should use the letterhead, telephone number, and business cards of his or her principal firm office. Anyone telephoning the lawyer should only be able to do so through the firm's offices, and the call can then roll over or be transferred to the lawyer's home office. Similarly, mail and e-mail should be routed to the firm's offices and then re-routed to the telecommuting attorney.

The underlying goal of the steps outlined above is simple. To the outside world, the telecommuting attorney should appear as though he or she is practicing out of the principal office where the attorney is licensed to practice. The more seamless the flow of communication, to and from the attorney, the better. Employers in other industries have used this strategy for years. Some examples that readily come to mind include telemarketing firms with call centers in India and computer companies with repair technicians located abroad. Even some American legal research firms apparently employ law clerks located overseas. For law firms and their telecommuting lawyers, however, implementation of a seamless system is important not only for marketing purposes. Indeed, such a system is of crucial importance to avoid UPL charges and ethical violations. Otherwise, what looked at first sight like a bridge over troubled waters will turn out to be a long walk on a short pier.

Jeffrey P. Ayres, a member of this newsletter's Board of Editors, is a partner at Venable LLP, with offices in New York, California, Washington, DC, Maryland, and Virginia. For many years, Mr. Ayres has chaired Venable's Ethics Committee. He regularly advises management (including law firms) on ethics and employment issues. He can be reached at [email protected].