Introduction

As the Covid-19 pandemic continues to have an impact on our economy and social structures, it comes as no surprise that the way people work – and the digital tools used – differ substantially from our experience of pre-pandemic work. Across the globe, organisations are extending a suite of remote work options, including full-time remote work, hybrid remote work and flexible personalised plans. The legal profession is no exception to this trend, and in facilitating the shift, a variety of digital tools and services have been implemented to optimise the experience of remote legal work. These tools and services include virtual meeting platforms, digital hearing and filing platforms for courts, e-signatures, digital document review and e-discovery.

The international uptake of digital tools and services in legal work signals a shift towards a new ‘normal’ in the profession. While being a lawyer was once synonymous with paper stacks and extensive physical libraries, digital tools and services have made the same world available through one’s laptop. The sustainability of the shift and our new ‘normal’ is also due in part to legislative reforms during the height of the pandemic that enabled an increased use of digital tools and services, and which in some cases continue to be in effect today. This article will examine how several jurisdictions, namely Australia, Belgium, India, Italy, Sweden and the United Kingdom adapted their legislative frameworks to facilitate remote work, the impact of remote work on the legal profession, the various innovations adopted in the context of the pandemic and whether such innovations and associated changes were maintained after the lifting of associated restrictions.

Legal frameworks and industry guidelines on remote work

In this first section, we set out applicable legal frameworks on remote work in Australia, Belgium, India, Italy, Sweden and the UK.

Australia

Australia’s legal framework surrounding remote work predates the Covid-19 pandemic. The National Employment Standard (NES) – Fair Work Act,^[1] adopted in 2009, sets out the legal entitlements to request flexible working arrangements. It is important to note that the right conferred is that of requesting the arrangements, not a right to such arrangements.

Beyond this general legislation, in August 2021, the Fair Work Ombudsman of the Australian government issued a ‘Flexible working arrangements Best Practice Guide’ for employers and managers. The Guide promotes the benefits of a best practice approach to flexible working arrangements that give employees flexibility where possible to help balance their work lives and personal lives. The benefits outlined in the Guide include higher job satisfaction, lower levels of work-related stress, less absenteeism, increased productivity and the ability to attract and retain skilled staff.

The Law Council of Australia, the State and Territory Law Societies and other legal organisations have also promoted flexible working arrangements, including flexible hours and working outside the office, including home. Some of these organisations have also developed their own guidelines and resources for best practice flexible working arrangements in the legal profession.

Belgium

Belgium’s legal framework surrounding remote work also predates the pandemic. Stemming from Collective Bargaining Agreement No 85^[2] and the Act on workable and agile work,^[3] two types of remote work exist in Belgium: ‘structural telework’ and ‘occasional telework’. Occasional telework is, unsurprisingly, occasional in nature, and can be requested by employees for two reasons: (1) force majeure; and (2) personal reasons inhibiting an employee from working from their employers’ premises. During the Covid-19 pandemic, certain exceptional rules mandating telework were applicable.^[4] In terms of structural telework, this arrangement is implemented on a voluntary basis by contract with one’s employer, requires no rationale and involves consistent remote work, though not necessarily five days a week.

It is also relevant to note the extent to which an attorney or legal counsel can benefit from these options is dependent on their classification as employees. For example, in-house legal counsel in Belgium are often considered to be employees, whereas attorneys in Belgium are generally considered independent enterprises. Attorneys not classified as employees are free to determine their own working conditions. In principle, attorneys are thus free to work from home whenever they wish to do so. Within the context of a law firm, proportionate limitations can be determined in the agreement between the attorney and the firm. Nevertheless, the pandemic has initiated a culture shift in terms of working remotely, even once working at the office became possible again.

Additionally, in response to the Covid-19 pandemic, the Belgian government made employee remote work mandatory for extended periods over the course of 2020 and 2021. The Belgian federal government created an exception for essential professions including the activities of attorneys.

India

Unlike Australia and Belgium, India’s legal framework does not contain any specific legislation, regulations or guidelines on remote work, except in certain cases, such as after maternity leave and for establishments operating in Special Economic Zones. That said, India is in the process of codifying its Industrial Relations Code 2020, wherein the draft model standing orders for the services sector contain a reference to ‘work-from-home’. The legal profession in India has engaged and continues to engage in remote work based on internal firm or company policies.

Italy

Italy, like Australia and Belgium, had a legal framework surrounding remote work that predated the Covid-19 pandemic. As of 2004, the Italian government has recognised and legislated ‘teleworking’, otherwise known as full-time remote work. In 2017, in the Law No 81 of 22 May 2017,^[5] the Italian government introduced ‘smart working’ (hybrid remote work) as a more flexible counterpart to teleworking. Both these forms of remote work require an employer and employee to conclude a specific agreement containing the scope and conditions of such remote work.

On 1 March 2020, in response to the Covid-19 pandemic, a decree of the Prime Minister was adopted, setting out a temporary simplified regime for ‘smart working’, which derogated from the ‘smart working’ regulation and some of its formalities. This temporary regime also enabled employers to impose remote work on employees. On 19 August 2022, the Minister of Labour and Social Policies, Andrea Orlando, issued a ministerial decree setting out amendments to Law No 81 of 22 May 2017 on smart working, essentially confirming the simplified procedure in place during the Covid-19 pandemic. ^[6]

Sweden

Like India, Sweden does have any specific legislation, regulations or guidelines on remote work. During the Covid-19 pandemic, the Swedish government did not render working from home mandatory, although its public health agency did recommend remote work from home, subject to the final decision of employers.

UK

The UK’s legal framework surrounding remote work is comparable to that of Australia. In particular, the extent to which ‘remote work’ is permitted by the UK government is that certain employees have a right to request ‘flexible working arrangements’ including remote work, under the Employment Rights Act 1996 (as amended).^[7] For example, qualifying employees could request a change in the number of hours they work, the times they work, or location of work or a combination thereof. It is important to note that like in Australia, the right conferred is that of requesting the arrangements, not a right to such arrangements.

Additionally, in response to Covid-19, the UK government issued guidance and imposed national (and at times, geographical) lockdowns to navigate the pandemic. Such measures effectively imposed the requirement for a number of those in the legal industry to work remotely from home.

The Advisory, Conciliation and Arbitration Service (Acas) – an independent public body funded by the UK government – also issued guidance for employers who were considering hybrid working or homeworking for their organisation. To supplement this guidance, in December 2021, the Chartered Institute of Personnel and Development (CIPD) published the guidance ‘CIPD: Hybrid working: Practical guidance’ on behalf of the government’s flexible working taskforce. CIPD also provides numerous online resources in relation to remote and hybrid working.

The Law Society, the professional body that represents solicitors in England and Wales, has also published a number of practice notes, guides and articles in connection with remote and flexible working, including but not limited to recommended processes and procedures for working from home; suggestions for the supervision of junior staff and trainee solicitors working remotely; and guidance for interacting with clients and conducting anti-money laundering.

Impact of remote work on legal work

Having reviewed the legal frameworks surrounding remote legal work, this article now turns to examining what changes members of the legal profession have experienced over the past couple of years in terms of how remote legal work is conducted.

Australia

While the Australian legal profession had already begun implementing a variety of digital tools and services prior to Covid-19, increased usage and adoption have resulted from the pandemic.

Prior to March 2020, most courts had already implemented e-filing technology for court documents, and some courts were even experimenting with ‘e-trials’. When pandemic lockdowns were in place, all documents were required to be filed using the court or tribunal e-filing system or sent to the court or tribunal by email. During this time, court and tribunal hearings were conducted remotely using Zoom or other video technology. Some courts and tribunals currently continue to conduct directions hearings or pre-trial procedural hearings remotely, without requiring the physical attendance of the parties and legal representatives.

E-signatures had been in use in Australia for over two decades prior to the commencement of the pandemic, regulated nationally under the Electronic Transactions Act 1999. ^[8] Some Australian states and territories had also already enacted laws enabling documents to be signed electronically. Despite the use of e-signatures prior to the pandemic, there has been a notable uptake in use of e-signatures in the past few years. A survey of Australians by Adobe in 2021 found that in the two years prior, almost half of Australians signed documents electronically.

Finally, during the pandemic, temporary emergency laws were introduced in the state of Victoria and other Australian states and territories that allowed for remote witnessing and execution of documents including deeds, mortgages, declarations and affidavits.

Belgium

As in Australia, the Belgian legal profession had already implemented a number of digital tools and services prior to the pandemic. That said, increased usage of these tools and services has been noted.

For example, electronic trust services such as e-signatures and electronic seals play an important role in legal practice. While Belgium introduced a new law on civil evidence including updated legislation on e-signatures in 2019, usage of e-signatures increased over the course of the pandemic. Similarly, while e-filing services such as DPA-Deposit and e-Deposit were used before the spread of Covid-19, they have since become the norm in litigation. E-Deposit is a tool provided by the Belgian government, whereas DPA-Deposit is a platform initiated and provided by professional associations for lawyers.

In the world of corporate law, the closing of large transactions was facilitated through the introduction of solid and hyper-secure platforms supporting a smooth online signing process for large constituencies.

Another notable change is the use of the secured JBOX network by courts and attorneys to exchange information, including on the organisation of court hearings and communication of judgments. There were also a small number of oral pleadings conducted through videoconferencing during the height of the pandemic. This practice was exceptional, however, and has not been maintained.

India

The Covid-19 pandemic has brought about various changes to the way the legal profession operates in India. For instance, in April 2020,^[9] the Supreme Court of India passed an order giving legal sanctity and validity to virtual hearings. Following the order, the Supreme Court itself, the high courts, and some low-level courts implemented virtual hearings. For instance, the Delhi High Court required virtual hearings for all cases and modified the video conferencing rules to govern such hearings. The Delhi High Court also modified the e-filing rules to streamline the process of filing documents through the High Court’s portal, which has simplified the previous process of handling bulky files and is contributing to a shift towards paperless operations.

Italy

Members of the Italian legal profession adapted quickly to remote legal work during the pandemic. This is due in no small part to the pre-existing telematic civil process, which had been introduced in 2004 on an experimental basis and was being implemented gradually. In response to the Covid-19 pandemic, however, a recent reform has extended the digitisation of the civil process making it, as a rule, completely digital, allowing non-digital filing only in exceptional cases. Furthermore, most judicial offices have adopted digital practices and guidelines that are still applicable today.

Additionally, like Australia and Belgium, the use of e-filing and e-signatures tools predates the Covid-19 pandemic, being implemented as early as 2014. In particular, the use of digital services such as e-filing was already mandatory before the pandemic, although only for certain stages of litigation and in some procedures.

Sweden

The Swedish legal profession has seen significant changes over the last few years. For instance, court filings can now be done electronically through e-filing services. The operations of corporate counsel have also changed significantly, specifically with regard to business software solutions employed in M&A transactions and the signatures related thereto.

UK

Like Sweden, the UK’s legal profession has noted substantial changes in the last few years and particularly in response to the Covid-19 pandemic. For instance, the UK business registry (Companies House), the UK land registry and the UK His Majesty's Revenue and Customs have all significantly increased the use of online filing services.

With respect to e-signatures, members of the UK’s legal profession note an increased appetite for the continued adoption and use of the tool. The aforementioned registries continue to accept documents that have been executed electronically, including deeds (where witnesses can validly apply electronic signatures too, using applications such as DocuSign). Additionally, an electronic signing platform (DocuSign) has become the default signing method for M&A transactions. There remain certain documents that require ‘wet-ink’ execution, however, such as wills and lasting powers of attorney.

Other innovations in remote legal work

In order to obtain a full picture of the experience of remote legal work in Australia, Belgium, India, Italy, Sweden and the UK, we now turn to a brief discussion of particular notable innovations in remote legal work in response to the Covid-19 pandemic.

Australia

Beyond the uptake of digital tools and services mentioned, Australian law firms had to upgrade their technology to provide secure virtual private networks (VPN) and videoconferencing technology to enable remote legal work.

Belgium

An innovation brought about by the Covid-19 pandemic is the increased use of online conferencing services, such as MS Teams and Zoom. Such videoconference platforms have become standard in Belgium, and physical meetings with clients have become the exception.

India

A notable innovation in Indian remote legal work includes the uptake in use of videoconferencing tools in order to communicate with clients and to opposing counsel. Members of the profession are also increasingly adopting paperless modes of working through the use of tablets and specialised software, such as LiquidText for notes, linking to electronic files. Online due diligence software maintaining data rooms also gained significant momentum during this period.

Italy

Increased and widespread use of digital tools and services led to important innovation in remote legal work in Italy. In particular, regulations regarding the digital domicile of members of the legal profession and notifications of documents have been amended. As a result, legal entities and professionals are now required to have a digital domicile represented by a certified email address, and serving court documents to counterparties by certified email has become mandatory. Traditional methods of service, such as sending documents through the post, is still permitted in the residual case where the addressee does not, and is not, obliged to have a digital domicile.

Sweden

Beyond the increased usage of digital tools and services mentioned, members of the Swedish legal profession note that bar association rules and the Court of Justice of the EU (CJEU) Schrems II decision restrict the use of cloud services, and thus certain digital innovations. For instance, innovations such as Slack and MS Teams, and cloud-based collaborative authoring (eg, Microsoft’s tools or Google Workspace) are subject to restricted use. In order to facilitate an increasingly digital and virtual legal work culture, certain members of the legal profession are challenging such bar regulations.

UK

Like other jurisdictions, the UK has seen increased use of collaborative meeting tools in order to facilitate remote work. Similar to the experience of members of the Indian legal profession, UK attorneys have also noted a significant drive towards paperless and paper-light working practices, such as moving file management processes and forms exclusively to an electronic/online format.

Another innovation in remote legal work in the UK includes the use of online virtual data rooms for managing shared documentation in due diligence and disclosure exercises in M&A transactions. There has also been innovation in software platforms that allows firms to manage and provide company secretarial services wholly online, creating efficiencies with drafting and managing paperwork and that potentially, by using the same online platform, promotes transparency and collaborative working between law firms, accountants and clients.

The pandemic’s impact on the rollout of e-signatures, e-filing and other remote ways of conducting legal work

Australia

As a result of pandemic lockdowns in Australia, there has been a rapid increase in the use of e-signature and e-filing systems. This has continued post-lockdown with many courts not accepting documents for filing other than via the e-filing system.

Belgium

As previously noted, e-filing and e-signatures were already employed by Belgian legal professionals before the pandemic. That said, the Covid-19 pandemic has certainly affected the rollout of future digital tools and services, as several public and private bodies in Belgium, such as the department of justice, the judicial powers and professional associations have prioritised digitisation on their agenda.

Even before the pandemic, other factors such an increasing demand for a better work/life balance had already led to more facilities for remote working. Additionally, and in particular for firms located in Brussels, the terrorist attacks of March 2016 generated multiple initiatives to support remote working. These initiatives include laptops and home printers for all attorneys and staff, swift remote access to all key applications and redundancy in connectivity and back-up.

India

In India, the virtual environment imposed as a result of the Covid-19 pandemic accelerated the rollout of e-signatures, e-filing and other remote ways of conducting legal work. The use of electronic signatures has increased in India, with both individuals and lawyers realising its benefits during the pandemic. Members of the profession surmise that had there been no pandemic or lockdowns in place, adopting such innovations by lawyers would have taken longer.

Italy

Like Belgium, e-filing and e-signatures were already employed by Italian legal professionals before the pandemic. That said, Covid-19 undoubtedly accelerated the process of the digitisation of legal work that had been underway. Indeed, the pandemic demanded that lawyers use e-signing, certified e-mail and e-filing of legal acts for a large part of proceedings and, more generally, of legal work (eg, signing contracts).

The fact that digitisation of the civil process was already underway in Italy prior to the pandemic facilitated the rollout of digital tools and services. When the pandemic began, judicial offices were already prepared for digital work, and most of the legal and procedural problems related to the use of digital tools had already been solved thanks to case law decisions and guidelines from the judicial offices themselves.

Sweden

Given Sweden’s high degree of IT maturity, the rollout of e-signatures, e-filing and other remote ways of conducting legal work were not greatly impacted by the Covid-19 pandemic. Such tools and services were generally already in place with widespread use, although the pandemic did increase usage even further.

UK

Remote work and the Covid-19 pandemic have accelerated the UK’s rollout, adoption and appetite for e-signatures, e-filing and other forms of remote legal work. As previously noted, a number of government bodies and agencies began operating digitally during the pandemic, which also contributed to this shift. It is possible that other factors may have contributed to this rollout, such as environmental considerations and financial factors (in respect of rent and office space required). However, such factors are unlikely to have had such a particular impact on the legal industry, were it not for the pandemic and challenges posed as a result.

The impact of lifting of pandemic-related restrictions on remote work

The article now turns to examining what impact, if any, the lifting of pandemic-related restrictions such as lockdown measures had on remote legal work.

Australia

Given that Australia had a pre-existing legal framework surrounding the right to request flexible working arrangements, when pandemic lockdown restrictions were lifted, the framework continued to apply. Workplaces are, however, being encouraged to adopt best practice policies and guidelines for flexible working arrangements, in connection with the best practice guide ‘Flexible working arrangements’ published by the Fair Work Ombudsman of the Australian government. Additionally, once lockdown restrictions were lifted, courts and tribunals returned to in-person hearings. Finally, the legislation permitting remote witnessing and execution of documents (including deeds, mortgages, declarations and affidavits) established during the pandemic has now been made permanent.

Belgium

Like Australia, Belgium had a legal framework for remote work in place that predates the Covid-19 pandemic. Accordingly, when pandemic-related restrictions eased, the pre-existing legislation on structural telework and occasional telework continued to apply.

India

When pandemic-related restrictions were lifted in India, the judges at the Delhi High Court began encouraging lawyers to be physically present in courtrooms again. That said, the High Court did not formally rollback or amend any of the rules regarding virtual hearings. The Court also fully adopted electronic and paperless modes of filing and working. Like the Delhi High Court, other high courts around the country have also reverted to complete physical hearings without a hybrid option.

The approach of India’s Supreme Court differs from that of the Delhi High Court in respect of virtual hearings. In fact, the Supreme Court has fully embraced virtual hearings, to the extent that the Chief Justice of India recently chastised certain high courts disbanding with technology set-ups. It is expected that an additional order will be passed by the Supreme Court to ensure that virtual hearings remain available across the country post-pandemic.

Moreover, several of the leading law firms in India are gradually requesting their lawyers to return to the office, although the current trend of hybrid working, for example, working from office three days a week, has been gaining momentum.

Italy

In Italy, the lifting of pandemic-related restrictions has resulted in the permanent adoption of the previously temporary, Covid-19-induced legislation on flexible ‘smart working’. These amendments simplify the procedure required for an employer and employee to enter into a contractual agreement on remote work.

Sweden

Given that Sweden did not adopt pandemic-specific measures, such as lockdowns, and given that Sweden did not have pre-existing legislation on remote work, there is no relevant change to this effect.

UK

In the UK, the Covid-19 pandemic, and the impact it has had on remote work, has resulted in a new bill seeking to modify the provisions on ‘flexible working arrangements’ in the Employment Rights Act 1996. Generally, the bill proposes modifications to the regime by giving employees greater flexibility over where, how and when they work. That said, and as previously noted, the right conferred is that of requesting the flexible arrangements, not a right to such flexible arrangements.

It is also notable that certain bodies and agencies continue to operate through digital means that did not exist before the Covid-19 pandemic. For instance, Companies House, the UK business registry, currently rejects paper filings made by post if the same form can be completed online via its Webfiling service, and therefore treats the electronic filing of applications as the default position post-pandemic. The UK’s revenue and compensation body also continues to permit the payment of stamp duty to be made online, and for a scanned copy of a stock transfer form to be submitted for adjudication. Physical stamping of stock transfer forms has still not been recommenced, thus cementing it as the default post-pandemic position.

The future of remote legal work

This section finally turns to the anticipated future of remote legal work.

Australia

While Australian law firms have trended towards the adoption of flexible working arrangements allowing remote work two days a week, policies are likely to change if productivity and billings are not maintained at profitable levels.

Belgium

Members of the Belgian legal profession generally anticipate further digitisation of their legal landscape. This notably includes upcoming proposals for a greater digital accessibility of judgments, and the increasing possibilities to use digital correspondence methods vis-à-vis the Belgian courts.

India

Indian legal professionals do not expect any significant changes to the legal framework surrounding remote legal work, given the conservative nature of the legal profession. However, the Bar Council of India has recently announced the opening up of the Indian legal sector by allowing foreign law firms to set up in the country.^[10] This may, in due course, trigger lawyers and law firms increasingly to innovative in order to take advantage of the flexibilities arising out of remote work, such as remote arbitration and mediation hearings, remote depositions and paperless modes of working. Further advances in artificial intelligence (AI) may also have an impact on how lawyers and law firms adapt to the changing legal landscape.

Italy

Anticipated changes in the area of remote legal work involve the long-awaited digitisation of the criminal trial process. During the pandemic, judicial offices adopted practices for the digital filing of criminal records and complaints, as well as the possibility of obtaining investigation and pending case files in a digital format. Reform for telematic criminal trial was in the process of adoption but has since been delayed.

Other relevant changes with a view to the digitisation of the legal process include the gradual implementation in the judicial system of high-tech tools that enable assessments of decision-making trends, classification and analysis of judicial decisions and automatic control systems for evaluations of the form and content of legal acts.

Sweden

Members of Sweden’s legal profession do not envision any particular future changes to remote legal work. That said, some members hope that the Swedish Bar Association will loosen regulations on the use of cloud services to adapt to the digital realities of legal work in 2023.

UK

Attorneys and legal counsel in the UK do not currently anticipate any changes to existing legislation on remote work, or or any implementation of specific legislation in relation to remote, hybrid and flexible working that grants employees express employment-related rights in England and Wales.

However, in terms of innovation and work culture, there is an expectation of law firms and the legal industry more generally to be embarking on a period whereby efficiencies and innovation driven by technological improvements in IT, significant investment in IT, improved offerings from IT service providers and greater employee satisfaction lead to improved client interaction and, consequently, greater service offerings and value for clients.

Conclusion

The experience of remote legal work over the last few years has undoubtedly been marked by the Covid-19 pandemic and the restrictions it imposed. While some jurisdictions went into the pandemic with pre-existing experience with digital legal tools and services, others were only at the beginning of their digital journey. Regardless of where jurisdictions were on the route to digitalisation, all jurisdictions noted increased usage and normalisation of digital tools and services such as e-filing, e-signatures and virtual meeting platforms in response to Covid-19. Additionally, while the legislative response to the pandemic in terms of remote work differed widely among the six jurisdictions considered, a larger cultural shift has been noted in the mindset of legal professionals in respect of digital legal tools. Looking to the future, this cultural shift is generally expected to continue, although subject to maintenance of efficiency and profit.