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June 27th, 2012 by Gwynne Monahan

ABA Commission on Ethics 20/20 Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits on Virtual Presence in a Jurisdiction

While America anxiously waits for the Supreme Court’s ruling on the Affordable Care Act, the ABA Commission on Ethics 20/20, specifically its Working Group on Uniformity, Choice of Law and Conflicts of Interest, recently released an Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits on Virtual Presence in a Jurisdiction (PDF).

The paper describes the issue as follows:

The Commission has learned that, since 2002, the proliferation of lawyers’ use of technology has raised new questions about the meaning of the phrase “systematic and continuous presence” in Rule 5.5(b). In particular, technology now enables lawyers to be physically present in one jurisdiction, yet have a substantial virtual practice in another. The problem is that it is not always clear when this virtual practice in a jurisdiction is sufficiently “systematic and continuous” to require a license in that jurisdiction.

Currently, Comment 4 to Model Rule 5.5 identifies the issue, but provides limited guidance as to how to resolve it. The Comment states that a lawyer’s “[p]resence may be systematic and continuous even if the lawyer is not physically present” in the jurisdiction. 

Neither the Rule nor the Comment provides any clarity as to when a lawyer who is “not physically present” in a jurisdiction nevertheless has a systematic and continuous presence there.

It’s easy to think “jurisdiction” is now irrelevant since the Internet puts goods and services at our fingertips. We don’t need to go to the store to buy groceries, we can order them online and have them delivered using PeaPod. We don’t have go to the bookstore to pickup the latest bestseller, we can order it, and other goods we think of at the same time, from Amazon. It practically seems a no brainer legal services should operate the same way.

The catch, though, is defining “systematic and continuous presence” in a digital age. Carolyn Elefant of MyShingle.com offers up a good overview of Rule 5.5 and the issue around virtual law offices, and some additional commentary.

The Issues Paper proposes some solutions:

1. Identify the factors that lawyers and disciplinary authorities should consider when deciding whether a lawyer’s presence has become sufficiently systematic and continuous to trigger Rule 5.5(b)’s requirement that the lawyer become licensed.
2. Make no proposal in this area and refer the issue to the Standing Committee on Ethics and Professional Responsibility for an opinion on the meaning of “systematic and continuous presence” in the context of virtual law practice.
3. Make no proposal in this area, but identify the relevant issues in an informational report that the Commission could file with the ABA House of Delegates to help educate the profession about this issue

The Commission is seeking comment “from lawyers who have a virtual practice and learn if those lawyers have encountered difficulties because of the ambiguous scope of Comment [4] to Rule 5.5(b).”

Comments are due July 31, 2012 and can be sent to Natalia Vera at natalia.vera@americanbar.org.