Nomads are considered by some to be primitive peoples, escaping the restrictions and advantages of a sedentary society. From this perspective, progress comes with regulation. Some are calling for nomadism to be eradicated, perhaps for the benefit of the nomads themselves, or perhaps for the benefit of the sedentary, or perhaps both.
A few days ago Matthew Parris called Time so travelers to Britain know their way of life is over: “There is simply no room for the real nomad in modern Britain”. His complaint arose following the setting up of their camp in the town of Matlock, Derbyshire, near his property in the Peak District.
But, oddly, nomadism is back in fashion, albeit in a different form than what Matthew Parris complains about. Digital nomadism is alive and thriving and, like its physical manifestation, it undermines the rules of settled communities.
Don’t worry, I haven’t strayed from the topic of lawyers. Whether it is because of the pandemic or simply because it is now technically possible, some lawyers may choose a more nomadic lifestyle.
Such choices upset our established professional rules as much as the old forms of nomadism upset established standards. Perhaps this time, critics of old-fashioned nomadism will see the new form as a sign of a progressive and fruitful future.
The photo of a digital nomad was of a backpacker working at a beach cafe in Thailand. But many people, including lawyers, have moved to another country in the wake of the pandemic. They may not hang out with their herds every few months to move to a different jurisdiction – or to avoid taxes like some digital nomads – but, in true nomadic style, they do not live within geographic boundaries. or in the rules that generally apply limits.
He may have started by being caught up in travel restrictions in another country or having chosen to go into lockdown with families elsewhere. I know a lawyer who every time I speak to him is in a quarantine hotel in another country. A new life in another country is now possible without the change affecting the work. It may have started with one movement – but now that movement is possible, more frequent movements may become the norm.
Nonetheless, we know from the pandemic that there are limits to virtual practice. Those who appear in court are not convinced that appropriate solutions have been found for anything other than interlocutory hearings. Those who have clients who are vulnerable, or with certain disabilities, or who serve clients on the other side of the digital divide such as the elderly, will need to pursue a physical practice close to their clients. But many others are free to choose.
As I have already written, the American Bar Association (ABA) recently issued two formal opinions regarding lawyers in such a position. Of course, he does not use the expression “ nomadism ”, but sticks to the more formal titles of “remote work‘and’virtual practice“. They can be taken as guides to the type of problems the new lifestyle can cause a lawyer.
First, there are some things that a system will always be needed for, such as processing physical mail or dealing with clients who are waiting for a physical meeting.
There are also other well-known issues: the need to understand the technology used and the terms and conditions of platform providers in terms of data and security; the need to maintain confidentiality in a less secure environment than an office.
One of the most important areas is the unauthorized practice of law. This is important for the United States with its federal system, where there are strict rules on practice across state borders. But this applies equally to national borders. Does the country in which a lawyer is located allow the temporary or permanent practice of a foreign lawyer? And if not, what are the consequences on the legality of the work undertaken, or just as important on the coverage of professional liability insurance?
But, given that these attorneys will primarily serve clients in their home jurisdiction under national law, the ABA reasonably says: “ A local jurisdiction has no real interest in prohibiting a lawyer from practicing law. from a jurisdiction in which that lawyer is licensed and therefore qualified to represent clients in that jurisdiction. But some national courts may consider that they nevertheless have a real interest.
A cyber world without borders has opened up before us, in which lawyers can move freely. A hesitant start can turn into a substantial change. We can therefore expect more legal Matthew Parris to emerge in the years to come, decrying the numerically nomadic lawyers stationing in their jurisdiction and ignoring their local rules.
But how interesting if the cycle went from nomadism to colonization and now to nomadism again.
Jonathan Goldsmith is a member of the Bar Council for European Affairs and former Secretary General of the Council of Bars and Law Societies of Europe. All opinions expressed are personal and are not expressed in his capacity as a member of the Bar Council, nor on behalf of the Bar.