The ABA Standing Committee on Ethics and Professional Responsibility recently issued two opinions that give timely advice on practice issues practicing attorneys are facing now: Formal Opinion 495 – Lawyers Working Remotely and Formal Opinion 496 – Responding to Online Criticism

Formal Opinion 495 – Lawyers Working Remotely, issued December 16, 2020, addresses the situation of a lawyer remotely practicing the law of the jurisdiction where they are admitted, but physically present in another jurisdiction where they are not admitted. The Opinion suggests that lawyers may do this:

• if the local jurisdiction in which they are physically present, but not licensed, has not determined such conduct is the unauthorized practice of law;
• if they do not hold themselves out as being licensed to practice in the local jurisdiction;
• if they do not advertise or otherwise hold themselves out as having an office in the local jurisdiction;
• if they do not offer to provide legal services in the local jurisdiction; and
• if they practice as permitted by Model Rule 5.5

The Opinion cautions that having local contact information on websites, letterhead, business cards, advertising, or the like would likely improperly establish a local office or presence.

The Opinion further notes that the purpose of Model Rule 5.5 – Unauthorized Practice of Law; Multijurisdictional Practice of Law, is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of the jurisdiction 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.

The Practical Effect:

This Opinion was issued referencing the Model Rules of Professional Conduct. If you have questions about the application of this Opinion to your Ohio practice, please contact us at OBLIC. The Ohio Board of Professional Conduct has also issued Opinion 2017-05 – Virtual Law Office, which provides guidance on operating a virtual law office using available technology.

Formal Opinion 496 – Responding to Online Criticism, issued January 13, 2021, discusses how lawyers may reply to online criticism and negative reviews. The Opinion notes that Model Rule 1.6 (a) – Confidentiality of Information, prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information. Further, a negative online review, alone, does not meet the requirements of permissible disclosure for self-defense under Model Rule 1.6(b)(5).

Best Practices noted in the Opinion:

• Do not respond to a negative post or review, thus avoiding more attention to it or additional negative response from the already unhappy client.
• Do not disclose any information that relates to a client matter or could reasonably lead to the discovery of information that relates to a client matter.
• Request that the website or search engine host remove the information.
• Post an invitation to contact the lawyer privately to resolve the matter.
• Indicate that professional considerations preclude a response.

The Practical Effect

If you are the subject of a negative online review or criticism, please contact OBLIC. We have addressed this scenario in the past.   

These Opinions provide well-researched information referencing the Model Rules of Professional Conduct to assist lawyers evaluating practice situations. Ohio adopted the Ohio Rules of Professional Conduct based on the Model Rules with Ohio-specific nuances. If you are faced with either of these situations, please contact OBLIC. We are here to help you meet these practice questions.

Gretchen Mote, Esq.
Director of Loss Prevention