Should California update rules on out-of-state attorneys?

Florida appears poised to join a growing number of states that allow lawyers licensed there to continue practicing while living in another state.

The issue has taken on new resonance in California at a time when people are fleeing the state to escape rising housing costs, wildfires and the pandemic. California lawyers cannot practice while living outside the state, a rule some legal ethics experts say needs to be revisited.

"I think the rules are antiquated," Kendra L. Basner, partner at O'Rielly & Roche LLP, said. "Because when these laws were made, they didn't take into account mobility and technology. And I think the pandemic has been good in the sense that it has shown the legal profession that people can competently practice law without being located in that state."

A Florida Bar ethics committee issued a proposal in August to relax restrictions on where lawyers can live and practice. The proposal came after a New Jersey attorney had moved to Florida and established an office in the state to continue to work for his New Jersey-based law firm. The lawyer would only represent New Jersey clients by using his laptop connected to the firm's network.

The committee found that the lawyer is not practicing Florida law nor providing legal services to the state's residents and could therefore practice law in New Jersey from his home in Florida.

A similar opinion was issued by a Utah ethics committee.

Other states, such as Arizona and Minnesota, have exceptions allowing lawyers licensed in another jurisdiction to provide legal services strictly on matters involving the law of the jurisdictions where the lawyer is licensed.

But not California.

Ellen A. Pansky of Pansky Markle Attorneys at Law said that the California Rule of Court 9.47 and 9.48 already permits an out-of-state lawyer to come to California and practice either transactional or litigation related law temporarily.

An out-of-state lawyer can also come to California if they're working exclusively in-house for a single client and is a resident of the state.

Other states, including Colorado, allows an out-of-state attorney to practice law in a different state from their temporary residency in Colorado in case of a disaster.

Pansky said that with the bar exam being administered remotely and with a new provisional licensure program slated to go live on Nov. 17, it's time to expand the rules.

"I think it only makes sense that we have to adapt," Pansky said. "The fact that somebody is living in another state, but practicing the law of the state of their admission, representing people in the state of their admission, and not misrepresenting themselves as being licensed in the state where they are not licensed. I can't see what even arguable harm there would be in order to justify a restriction on that."

The new State Bar Closing the Justice Gap Working Group is charged with exploring recommendations to ethics rules. But an update to out-of-state lawyer rules is not on the agenda.

"There are many other states that have enacted these walls," Basner said. "And others who have put in temporary measures, which hopefully, they will see that it didn't cause havoc, and they will eventually make them permanent measures, I think California will see that it is so far behind the curve on this."

The Board of Trustees postponed confirming the group members after board members were concerned that the group was not diverse enough.

"I'm hopeful that by postponing the appointment of that committee that they are going to put in a concerted effort to round out that group so that it has people expressing all perspectives of access to justice," Basner said.