One of the more recent initial resolutions published by the ABA Commission on Ethics 20/20 clarifies Model Rule 5.5 as it relates to systematic and continous presence and shows the Commission’s acceptance of the growth of alternative law practice structures, such as virtual law practice.
Comment  of Rule 5.5 covers when systematic and continues presence is established in a jurisdiction by a lawyer who is not admitted to practice in that jurisdiction. The question for virtual law practitioners is whether or not their physical presence in one state while they practice the law of another state online constitutes the authorized practice of law in another jurisdiction in violation of Rule 5.5.
The Commission’s changes to the comment are intended to help lawyers determine when their “non-physical” presence might be classified as “systematic and continuous.” And more importantly, to make it clear that virtual law practice is still subject to the restrictions of the Rule 5.5(b). The comment also clarifies that legal services may be delivered online to clients in other jurisdictions occasionally as long as it is in compliance with Rule 5.5(c).
The previous version of the comment stated simply that “[p]resence may be systematic and continuous even if the lawyer is not physically present here.” The revised version of Comment  provides this additional language and restructuring of the last paragraph:
For example, a lawyer may direct electronic or other forms of communications to potential clients in this jurisdiction and consequently establish a substantial practice representing clients in this jurisdiction, but without a physical presence here. At some point, such a virtual presence in this jurisdiction may become systematic and continuous within the meaning of Rule 5.5(b)(1). Moreover, a lawyer violates paragraph (b)(2) if the lawyer is not admitted to practice in this jurisdiction and holds out to the public or otherwise represents that the lawyer is admitted to practice law in this jurisdiction.
Let’s place that into a virtual law practice scenario: An attorney licensed to practice law in SC physically lives in NC and operates a virtual law office from a home-based office or shared office space and only serves clients who have SC law related matters. Ignoring any state residency requirements or bona fide office rules for the moment, the Commission’s comments simply clarify that the attorney’s actions are systematic and continuous when he or she advertises the VLO in SC and holds the practice out in that state as providing legal services to SC residents. Same thing applies to a multijurisdictional virtual law firm with a VLO website that advertises online delivery across multiple states with attorneys located across the country with different licensure.
Given all the different forms and structures of virtual practice, the Commission concluded that “precision in this area is not possible” and does not “clearly define the line between a permissible temporary practice in a jurisdiction and an impermissible systematic and continuous presence.” Perhaps this is recognition that to create such precision in a rule or comments to a rule has the potential impact of discouraging innovation in the delivery of legal services.
The Commission adds “[t]he purpose of this amendment is not to discourage virtual law offices. To the contrary, the Commission found that lawyers who have such practices can offer legal services efficiently and effectively and can improve access to justice.” The Commission does not intend to treat virtual practice any different than traditional practice in terms of compliance with Rule 5.5.
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