Under the “butt-in-the-seat” rule, lawyers physically present in a jurisdiction must be authorized to practice in that jurisdiction even if they practice the law of another jurisdiction serving clients of the jurisdiction of admission. Naturally that rule is a remnant of a past in which the practice of law required in person services; in the modern world that rule is quite an impediment.
South Carolina Supreme Court has adopted a limited rejection of the “butt-in-the-seat” rule, under which a lawyer engages in the practice of law in a jurisdiction in which the lawyer is present when performing legal services even if the services are performed remotely and involve the law of a jurisdiction where the lawyer is authorized to practice. See Nathan M. Crystal, Change is in the Air, 32 S.C. Lawyer 15 (2020) (discussing the rule). Under the Court’s modification a lawyer does not establish an office or engage in systematic presence for the practice of law in South Carolina if the lawyer engages in remote work in South Carolina provided the lawyer’s services are limited to ones that the lawyer is authorized to perform by the jurisdiction where the lawyer is admitted to practice and the lawyer does not hold himself or herself out as a South Carolina lawyer or admitted to practice in South Carolina. The Court adopted the following addition to comment 4 of SCRPC 5.5.
A lawyer admitted in another jurisdiction does not establish an office or other systematic presence in this jurisdiction for the practice of law by engaging in remote work in this jurisdiction, provided the lawyer’s legal services are limited to services the lawyer is authorized to perform by a jurisdiction in which the lawyer is admitted, and the lawyer does not state, imply, or hold out to the public that the lawyer is a South Carolina lawyer or is admitted to practice law in South Carolina.
Some questions may arise about the application of the new comment. The new comment would seem to allow a lawyer vacationing in South Carolina to perform remote services for clients involving the jurisdiction where the lawyer is admitted to practice so long as the lawyer does not engage in any “holding out.” Would the rule allow a lawyer who is admitted to practice in another jurisdiction to move to South Carolina permanently and do only remote work here? It seems so since the rule does not have a time limit or a residence test. Could such a permanent remote lawyer have an actual office (to get away from home, for example) where the lawyer only performs remote services? It seems that conduct is also proper if the lawyer’s work is limited to remote services. Could the lawyer meet clients from the lawyer’s home state at this office? The answer is “No.” In this case the lawyer would not be performing remote services. Instead, the lawyer should conference with the client through Zoom or other remote conferencing platform, or travel to meet with the client in the lawyer’s home jurisdiction. Suppose the lawyer works for a firm that has an office in South Carolina, can the lawyer go into the office but only practice remotely? The answer is probably yes, but with some uncertainty. If the lawyer does nothing but remote practice, that is probably in compliance with the rule, but suppose the lawyer meets with other members of the firm to discuss legal matters? If the discussions are limited to the law of the jurisdiction where the lawyer is admitted to practice, that is probably permissible; similarly discussion of firm business matters should also be permissible since that is not practicing law. Participation in meetings with clients or South Carolina lawyers would not be proper. Suppose a lawyer has been hired by a South Carolina firm, has moved to the state, and is in the process of seeking bar admission. Could the lawyer continue to handle matters remotely in his former jurisdiction of practice and residence? Probably so if the “go into the office” reasoning above is correct. Could this same lawyer do a combination of work – remote work for clients in the lawyer’s former jurisdiction and work under the supervision of a member of the firm (a South Carolina lawyer).? So long as the lawyer complies with the dual requirements for remote working and working under the supervision, this combination is probably ethically permissible but the combination increases the risk of a disciplinary complaint/inquiry, which may slow up the bar admission process.
