Hello everyone and welcome to this Ethics Alert which will discuss the Proposed Advisory Opinion issued by the Florida Bar’s Standing Committee on the Unlicensed Practice of Law stating that an out-of-state lawyer may practice federal law remotely from his Florida home. Proposed UPL Advisory Opinion FAO #201904 is here: https://www-media.floridabar.org/uploads/2020/07/Complete-FAO-2019-4-Opinion-1.pdf
The proposed advisory opinion states that an out-of-state licensed attorney who is working remotely on federal intellectual property rights matters (and not Florida law) from his or her Florida home for an out-of-state law firm and no public presence or profile in Florida as an attorney would not be engaging in the unlicensed practice of law. The advisory opinion will be filed with the Florida Supreme Court on August 17, 2020.
The opinion states:
In light of the current COVID-19 pandemic, the Standing Committee finds the written testimony of Florida-licensed attorney, Salomé J. Zikakis, to be particularly persuasive:
I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.
There are areas of the law that do not require being physically present, whether in a courtroom or a law office. Using the attorney’s physical presence in Florida as the definitive criteria [sic] is inappropriate. So long as the attorney is not practicing Florida law, is not advertising that he practices Florida law, and creates no public presence or profile as a Florida attorney, then there is no UPL simply because the attorney is physically located in Florida. There is no harm to the public. These facts do not and should not constitute UPL in Florida.
The opinion concludes:
It is the opinion of the Standing Committee that the Petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law. Consequently, it is the opinion of the Standing Committee that it would not be the unlicensed practice of law for Petitioner, a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.
The Florida Bar’s notice of filing the proposed advisory opinion states:
The bar will file the proposed opinion with the Supreme Court of Florida on or about August 17, 2020. Pursuant to R. Regulating Fla. Bar 10-9.1(g)(3), “within 30 days of the filing of the proposed advisory opinion, the petitioner and any other interested party may file a brief or memorandum in response to the proposed advisory opinion, copies of which must be served on the committee at the Florida Bar’s headquarters address in Tallahassee. The committee may file a responsive brief or memorandum within 20 days of service of the initial brief or memorandum. The petitioner, and other interested persons, may file a reply brief within 10 days of service of the responsive brief or memorandum. The court may permit reasonable extension of these time periods. Oral argument will be allowed at the court’s discretion. Filing, service, and oral argument will be governed by the Florida Rules of Appellate Procedure.”
Bottom line: If the Florida Supreme Court approves the proposed advisory opinion and issues a formal opinion, it will clarify that out of state lawyers with no place of business in Florida and without a public presence or profile in Florida as an attorney can practice federal law (and not Florida law) remotely from a Florida residence.
I will continue to follow this issue and keep you advised. Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670