This piece originally appeared in the January 2022 edition of DS News magazine, online now.
It took the COVID-19 pandemic in the United States to revolutionize how we practice law, and the “how” is still evolving. Even prior to the pandemic, due to increasing innovations in technology, everyone has been using internet communications more and more. As the California Bar stated in 2012, “The legal services industry has not been untouched by these innovations and the use of technology, including the internet, is becoming more common, and even necessary, in the provision of legal service.”
Historically, attorneys maintain physical addresses in the states in which they are barred, and generally they have worked from those locations. In March 2020, when lockdowns were mandated, leading to almost overnight work-from-home (WFH) requirements, law offices adapted and implemented WFH offices for their teams. Many legal teams remain remote, or at least are allowed to use a hybrid schedule.
Typically, the remote or hybrid work schedules for lawyers envision everyone living within the vicinity of the office, or at least within the state where the lawyers are barred. However, why not take advantage of the WFH office and make home somewhere more palatable than a current location? For those attorneys appearing in court, most court appearances remain virtual due to the pandemic, though many think virtual appearances will remain due to the ease of use and technological advances that facilitate their use.
Remote Practice Within the U.S.: Ethical Considerations
In theory, via technology and other tools which will be discussed later, attorneys can relocate where they live and continue to practice law virtually, be it within or outside of the United States—but there are some big “ifs.” State bars have promulgated various rules and lawsuits have been filed seeking to determine whether a virtual practice of law constitutes the unauthorized practice of law.
So, can lawyers practice law in the state in which they are licensed, while they are physically present in a different state? The American Bar Association issued the following Formal Opinion 495 on December 16, 2020:
Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.
Several states agree with this ABA opinion, including Maine [Maine Ethics Opinion 189 (2005)] and Utah [Utah Ethics Opinion 19-03 (2019)]. One key is to check rules of the jurisdiction where the practice is, and of the jurisdiction of the remote location, to make sure no bar rules are violated.
The ethics of remote work outside of the United States remains a little murkier because most bar ethics opinions do not specifically address lawyering while living abroad. There is guidance about obtaining work visas for other countries from the U.S. Department of State, however. For example, other countries typically require a bilateral work agreement or de facto work arrangement in place in order to obtain a work visa from the host country. Additionally, each jurisdiction may have different requirements for practicing law in their locale, so this research should also be completed.
Sign of COVID-19 Times: The Digital Nomad Visa
“A digital nomad is someone who lives a nomadic lifestyle and uses technology to work remotely from outside their home country. A digital nomad visa is a document or program that gives someone the legal right to work remotely while residing away from their country of permanent residence.”
Loss of tourist income and remote work safety protocols caused by COVID-19 have led to development and increased use of what is known as a digital nomad visa, which is currently offered by 24 countries and regions as of July 2021. Alternative nomenclature for these visas may be residency permit, workcation, or global citizen concierge program.
Pricing varies for these visas, as well as requirements for different venues. Countries and regions also test for COVID-19 and therefore may limit or provide conditional admittance based on pandemic concerns.
One benefit of being a digital nomad is that infrastructure, namely internet and telecommunications, is robust in most countries. Downsides include time differences, the ability to work your job remotely based upon local and remote requirements, and the temporary timeframe of the visas.
The following places offers these visas: Anguilla, Antigua and Barbuda, Barbados, Bermuda, Cabo Verde, Cayman Islands, Costa Rica, Croatia, Curacao, Czech Republic, Dominica, Estonia, Georgia, Germany, Iceland, Malta, Mauritius, Mexico, Monserrat, Norway, Portugal, Seychelles, and Taiwan.7
How to Handle the ‘Small but Important’ Stuff
Bank and Financial Services
An estimated 7 million Americans have a digital nomad lifestyle, so there are several resources available for the same services enjoyed by homebodies. One key is finding financial services without foreign transactions fees, with low or competitive ATM withdrawal fees, and access 24/7 with apps and good online support, including mobile wallet support and contactless debit cards. Some financial institutions offering these features are international, while others are based overseas, so research is key to finding the best deal and adaptability. If virtual work involves using virtual staff, a comprehensive system involving the use of remote banking systems for depositing and issuing payments should be in place too. As will be discussed later, these financial services could be combined with a virtual mail processing system.
As with the availability of “virtual” financial services, mail processing services for virtual companies fill the void for those that no longer pay rent for commercial space. Mail services also provide a physical business address in the jurisdiction in which the attorney is licensed, which is a requirement of most American state bars. In addition, these mail services can forward physical mail to you and/or to scan and forward mail electronically.
For example, the Association of the Bar of the City of New York, Committee on Professional Ethics issued an opinion in 2019 about use of a virtual law office address and stated:
A New York lawyer may use the street address of a virtual law office (“VLO”) located in New York as the lawyer’s “principal law office address” for the purposes of Rule 7.1(h) of the New York Rules of Professional Conduct (the “New York Rules” or the “Rules”), provided the VLO qualifies as an office for the transaction of law business under New York’s Judiciary Law. In addition, a New York lawyer may use the address of a VLO as the lawyer’s office address on business cards, letterhead, and law firm website. A New York lawyer who uses a VLO must also comply with other New York Rules, including Rules 1.4, 1.6, 5.1, 5.3, 8.4(a) and 8.4(c).
Interestingly, traveling abroad with prescriptions presents logistical issues. As a nomad, your required medicines, whether over the counter or prescription, must be brought to the remote location, but while they may be legal in the United States, they may be considered unlicensed or controlled substances in other countries.
For example, some inhalers and certain allergy and sinus medications are illegal in Japan. Moreover, the consequences for violating drug laws in other countries can be very serious, resulting in confiscation of needed medicine and possibly imprisonment (for example, note the strict narcotics laws in the United Arab Emirates). A pre-check with the embassy of that country should provide guidance about admissibility of medicine into that country.
Another issue is coordinating length of stay with the expiration of a prescription, which typically are 30-, 60-, or 90-day supplies, though insurance may cover only a limited supply for 30 days. If an extended supply is not available, it is possible to buy medicine at your destination, with the caveat that only reputable pharmacies and doctors be used, especially in developing countries where counterfeit drugs are a problem. A recommended resource is the nearest U.S. embassy or consulate.
Finally, travel with medicine in original containers and have a note ready from the prescribing doctor for controlled substances, such as medical cannabis.
Electronic Signatures, Electronic Filing, Remote Bandwidth, and “Zooming” Into Court
Practicing virtual law implies using an adequate computer system with good internet access, the latter of which is almost universally available except in certain remote areas. Access to electronic signatures on agreements and court pleadings is a matter of selection of software, such as DocuSign and Adobe Sign. All U.S. federal courts, and all U.S. state courts, even if partially implemented, have or require electronic filing of pleadings, again facilitating the digital practice of law.
Ancillary to electronic communications are virtual meetings and court hearings, which were used almost exclusively during the height of the COVID-19 pandemic to reduce transmission of the virus. The somewhat unexpected result is that it looks like virtual hearings are here to stay, to some degree, which again facilitates virtual practice, at least for civil law. Some criminal and immigration court proceedings, in order to maintain due process protections, have returned to in-person proceedings.
Studies have found that jurors in criminal cases respond better to in-person testimony and that immigration participants lacked substantive participation in court proceedings, to their detriment.
Florida as a Pioneer Among Court Systems for Remote Access
In April 2021, the Florida Supreme Court launched a virtual courtroom directory, Courtrooms.FLCourts.org, to publish information to the public about virtual court proceedings. The Court noted, “The move toward more virtual proceedings is a major historical shift in state court operations, which have relied heavily on in-person hearings in the 175 years Florida has been a state.”
The Florida court system is only one example of court systems throughout the world who have embraced remote proceedings during the pandemic, and beyond, to the benefit of digital nomads everywhere. Reform of justice systems is usually slow and difficult to achieve, but the experiences of the COVID-19 pandemic show that change can take place relatively quickly and efficiently.
Use of technology allows more access to justice, through use of virtual hearing used by parties and the public. However, certain proceedings, like criminal and immigration, may not be as well suited to all-virtual access.
Given the heightened awareness of public safety and COVID-19 variants, as well as acceptability and user preference for use of virtual communications, it looks like the world of the digital nomad attorney will continue to expand.