Per Curiam. The State Bar of Georgia has requested discretionary review of Formal Advisory Opinion (FAO) No. 22-1, which addresses the topic of remote work by non-Georgia lawyers living in Georgia.[1] The Formal Advisory Opinion Board drafted this FAO after accepting the request made by the Office of the General Counsel for the State Bar of Georgia to address this issue.[2] See State Bar Rule 4-403 (b).[3] FAO No 22-1 was first posted on the State Bar of Georgia’s website from September 26 through October 26, 2022, and members of the State Bar were invited to submit comments. See State Bar Rule 4-403 (c).[4] The Board received five comments and decided to modify the proposed advisory opinion as a result. The modified FAO No. 22-1 was published on the State Bar’s website from May 9 through June 9, 2023. The Board received one comment, which supported approval of the FAO. On September 26, 2023, the Board made a final determination to approve FAO No. 22-1, and the State Bar filed a petition for discretionary review of the FAO in this Court. See State Bar Rule 4-403 (d).[5] On April 11, 2024, we granted the State Bar’s petition for discretionary review. See id. After considering the record and the State Bar’s brief, we hereby approve FAO No. 22-1, which is attached to this opinion as an Appendix. Formal Advisory Opinion No. 22-1 approved. All the Justices concur. STATE BAR OF GEORGIA FORMAL ADVISORY OPINION NO. 22-1 (Proposed Formal Advisory Opinion No. 21-R1) QUESTION PRESENTED: Under Georgia Rule of Professional Conduct 5.5, may a Domestic Lawyer or a Foreign Lawyer provide legal services by remote means from Georgia while residing in Georgia, when the services have no relationship with Georgia other than the lawyer’s physical location? SUMMARY ANSWER: Yes, under certain conditions. A Domestic or Foreign Lawyer residing and working in Georgia may provide legal services by remote means that have no relationship to Georgia other than the lawyer’s physical location if: (a) the lawyer does not hold out or otherwise represent that they are licensed in Georgia; (b) the lawyer takes reasonable steps to ensure that the lawyer’s Georgia location is not generally known; and (c) the lawyer takes reasonable steps to correct any misunderstanding about the lawyer’s licensure.[6] OPINION: Under the Georgia Rules of Professional Conduct, a lawyer who is licensed elsewhere but not in Georgia is defined as either a “Domestic Lawyer” or a “Foreign Lawyer.” A “Domestic Lawyer” is “a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.”[7] A “Foreign Lawyer” is “a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.”[8] The Formal Advisory Opinion Board (“FAOB”) has been asked to provide guidance about a hypothetical Domestic or Foreign Lawyer who has taken up residence in Georgia. Using telephone, email, cloud file storage, videoconferencing, and other technologies, the lawyer practices law from Georgia while residing in Georgia but provides no legal services that have any connection to Georgia other than the lawyer’s physical location. The narrow question for the FAOB is whether Rule 5.5 is violated under these specific circumstances.[9] Georgia Rule of Professional Conduct 5.5 sets forth the limited circumstances under which a Domestic or Foreign Lawyer may provide legal services “in Georgia.” It permits Domestic Lawyers to provide in Georgia certain services on an ongoing basis for the lawyer’s employer or its organizational affiliates and services that the lawyer is authorized to provide by federal or Georgia law.[10] Foreign Lawyers may provide in Georgia some ongoing services for the lawyer’s employer or its organizational affiliates.[11] Rule 5.5 also permits both Domestic and Foreign Lawyers to provide some legal services in Georgia if the services are performed on a temporary basis.[12] The Georgia Rules of Professional Conduct do not define what it means to provide legal services “in Georgia.” This Opinion concerns only hypothetical activities that have no connection to Georgia other than the physical location of the Domestic or Foreign Lawyer rendering the service. The hypothetical services do not relate to any Georgia client, lawsuit, or alternative dispute resolution proceeding. They do not involve Georgia law or any property located in Georgia. They do not involve any organization or its affiliates with offices in Georgia. The FAOB concludes that providing such legal services from Georgia is not the provision of legal services “in Georgia” within the meaning of Rule 5.5.[13] The limitations of Rule 5.5 on the circumstances under which Domestic or Foreign Lawyers may provide legal services in Georgia are thus inapplicable to the hypothetical activities addressed in this Opinion. Even if a Domestic or Foreign Lawyer is not providing legal services “in Georgia,” Rule 5.5 prohibits certain other activities. Domestic or Foreign Lawyers may not, except as authorized by other rules or other law, “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law” or “hold out to the public or otherwise represent that the [Domestic Lawyer or Foreign Lawyer] is admitted to practice law in this jurisdiction.”[14] The purpose of these prohibitions is to prevent the public from being misled about the Domestic or Foreign Lawyer’s licensure. Obviously, an affirmative misrepresentation creates a risk that the public will be misled. So does the establishment of a physical office or other systematic and continuous presence for the practice of law in a state where the lawyer is not licensed.[15] The question for the FAOB therefore is whether a Domestic or Foreign Lawyer who resides in Georgia and renders legal services by remote means from Georgia can take steps to ensure that the public will not be misled about the lawyer’s licensure. The answer is yes. The Domestic or Foreign Lawyer must not affirmatively misrepresent themselves as licensed in Georgia. The lawyer must practice only remotely and take all other reasonable steps to ensure that the lawyer’s provision of legal services from Georgia is not generally known to the public. For example, the lawyer must not reveal their Georgia location in advertisements, letterhead, business cards, or on the internet. If the lawyer knows or reasonably should know that a member of the public believes that the lawyer is licensed in Georgia, the lawyer must give an appropriate disclaimer. By providing legal services from Georgia under these conditions, even on a continuous basis, the lawyer negates the risk that the public will be confused about the lawyer’s licensure. The hypothetical Domestic or Foreign Lawyer has not therefore established an office or other continuous and systematic presence for the practice of law in Georgia in violation of Rule 5.5. Other authorities agree.[16] For example, the Supreme Court of Florida approved an advisory opinion that it would be permissible for a lawyer not licensed in Florida to practice federal intellectual property law from his Florida home through his internet connection to his New Jersey law firm, where the lawyer “would have no public presence or profile as an attorney in Florida” and “neither he nor his firm will advertise or otherwise inform the public of his remote work presence in Florida.”[17]That opinion concluded that, under Florida’s version of Rule 5.5, the lawyer “will not be establishing a regular presence in Florida for the practice of law; he will merely be living here.”[18] Since then, the Florida Rules of Professional Conduct have been amended to add a comment to its version of Rule 5.5 that is consistent with the Florida advisory opinion.[19] Similarly, the Utah Ethics Advisory Committee posed and answered this question about Utah’s version of Rule 5.5: “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is … none.”[20] In New Jersey, a lawyer licensed elsewhere does not establish a continuous and systematic presence for the practice of law if the lawyer only practices out-of-state law and has no “outward manifestation of physical presence, as a lawyer, in New Jersey.”[21] It is important to highlight the limits of this opinion. We conclude that a Domestic or Foreign Lawyer does not violate Rule 5.5 by providing legal services by remote means from Georgia (but not “in Georgia”) while residing in Georgia, under specific conditions. The lawyer must not misrepresent the lawyer’s lack of Georgia law license. The lawyer also must take reasonable steps to ensure that the Georgia location of the lawyer is not generally known and to correct any misunderstanding of the lawyer’s licensure. For Domestic and Foreign Lawyers who wish to practice from Georgia, this Opinion provides a safe harbor from the limits of Rule 5.5. This Opinion does not purport, however, to provide guidance beyond that. Domestic or Foreign Lawyers who provide services “in Georgia” or whose presence in Georgia becomes generally known must consult Rule 5.5 and other applicable law to determine the propriety of such activities.
