Better Late Than Never: New York Approves Remote Practice Rule

This article was originally published December 22, 2022.

Earlier this month the New York Court of Appeals amended the rules governing temporary practice of law to allow for remote work in New York by lawyers licensed in other jurisdictions. The Court’s order adds a new section, Part 523.5 to the existing rules on temporary practice of law in New York. The rule will allow lawyers who are not admitted to practice in New York to practice law from a “temporary or permanent residence or other temporary or permanent location” in New York to the same extent that the lawyer is permitted to practice in their home jurisdiction under the following conditions:

Lawyers working remotely in New York may not practice New York Law, except to the extent permitted by the temporary practice rules (Part 523) or other law;
Lawyers working remotely in New York may not use advertising, letterhead, signage, signature blocks, websites, or otherwise hold themselves out publicly or privately as authorized to practice law in New York or having an office for the practice of law in New York;
Lawyers working remotely in New York may not solicit or accept residents or citizens of New York as clients on matters that the lawyer knows “primarily require advice on the state or local law of New York” (except as permitted by New York’s in-house counsel registration rule or federal law);
Lawyers working remotely in New York may not regularly conduct in-person meetings with clients or third persons in New York except as otherwise permitted by the temporary practice rules; and
If a lawyer working remotely in New York knows or reasonably should know that a person with whom the lawyer is dealing mistakenly believes that the lawyer is authorized to practice in New York, the lawyer must make “diligent efforts” to correct the misunderstanding.

Since the beginning of the pandemic, lawyers struggled to reconcile the rules prohibiting the unauthorized practice of law in each jurisdiction with the practical realities of remote work. A number of states also issued updated rules and ethics opinions, which largely allowed for remote work under similar conditions. In November 2021, the New York City Bar Association proposed amending Part 523 to allow for remote practice in New York. The New York State Bar Association House of Delegates approved the measure and sent it to the courts for approval.

This is a significant development for lawyers and law firms in New York. For lawyers admitted in other jurisdictions seeking to work remotely in New York, the new Part 523 offers much-needed comfort. For law firms with offices in New York and elsewhere, Part 523 also offers helpful guidance concerning the circumstances under which lawyers may work remotely in the state. Similar to ABA Opinion 495, Part 523.5 also recognizes the distinction between a lawyer who is merely located in New York and a lawyer who is actively holding themselves out as available to practice in the state. In addition to making good sense, it is also an important step away from rigid unauthorized practice rules that focused more on where a lawyer is physically located than what a lawyer is actually doing and whether there is a risk of harm to the public.