Trials and Triumphs for Remote Legal Practice during COVID-19
Across Australia, remote working has changed the landscape of many industries, particularly that of legal practices. Challenges have ranged from the practical to the pastoral, from standard technological connectivity issues to the complication of enforcing complete security and confidentiality. Yet whilst many of these challenges have been unanticipated and unprecedented, many within the legal industry have risen to overcome these obstacles, adapting and evolving to ensure their continued success.
Here, we reflect on the six central challenges lawyers and firms have experienced when transitioning in response to COVID-19, how they have responded to those obstacles and what measures they are implementing moving forwards. We discuss:
- Remote work infrastructure;
- Leadership and team support;
- Client communication;
- Online court and litigation processes;
- Legal document challenges, and;
- Business strategy and continuity.
1. Remote work infrastructure
Firms which have previously adopted flexible work practices, before the escalation of self-isolation measures, have transitioned to a predominantly remote working set-up easier than most. For others, it has been a harried and somewhat frantic experience to ensure all staff have the correct equipment and software for a secure work environment.
Regardless, for all firms it has remained crucial that the transition of work typically conducted in-office to the home environment be both smooth and successful.
Infrastructure requirements that have been taken into consideration include:
- Virtual Private Networks (VPNs), ensuring a secure, encrypted connection for employees;
- Secure Software as a Solution (SaaS) options for storing and dealing with client information, ensuring confidentiality is preserved and the Australian Privacy Principles are complied with;
- Anti-virus protections to protect firm assets from cyber-attacks;
- Staff training on IT security, including robust password protections and avoiding cyber-scams. There has been a reported increase in ‘phishing’ and ‘malware’ attacks specifically related to COVID-19 that all staff need to be alert for.
2. Leadership and team support
Albeit having the correct physical infrastructure in place is important, it is meaningless if firms and leadership teams fail to address the need for pastoral support during this difficult time. Without face-to-face interaction, teams have been required to make special effort to connect with one another by phone or apps, such as via Slack channels.
It has also been essential for firms to acknowledge that many staff have young children at home, or may have sick/vulnerable family members, meaning a need for additional work flexibility.
3. Client communication
Whilst ensuring staff are able to thrive in the remote work environment, firms have likewise recognised the importance of maintaining client relationships by contacting them personally. This has been crucial to alleviating any client concerns that the quality of service will decline as a consequence of remote working; reminding clients that it is ‘business as usual’. Moreover, through contacting clients personally, this has also enabled firms to identify any new potential legal issues a client could be facing, and highlight where the lawyer can be of early assistance.
4. The impact of online court and litigation procedures
In many courts, non-urgent matters have been adjourned and will be dealt with once the current crisis is over. Where proceedings have continued, the majority of proceedings now occur online. As a consequence, lawyers are required to:
- manage client expectations with respect to resolving adjourned litigation;
- consider how to navigate litigation in a social distancing environment. For example, the recent Queensland Supreme Court personal injury hearing Tyndall v Kestrel Coal Pty Ltd  QSC 56 allowed for a medical assessment to be carried out remotely;
- ensure familiarity with the technology being used or permitted in that court. For instance, many are using Microsoft Teams.
The New South Wales Bar Association has produced an informative guide summarising the various court procedure changes in New South Wales.
5. Legal document challenges
The signing of legal documents such as affidavits, Wills, contracts and deeds has been complicated by the fact that clients, witnesses, officials and lawyers should not currently be in close proximity, in the same room. In response, the courts have temporarily relaxed or adapted many of the rules relating to signing and witnessing. For example, consider the latest rules of the Family Court.
As well as complying with these new rules, lawyers have found a need to be aware of additional risks arising from the remote-first environment:
- A potential increase in fraud due to the misuse of digital signatures;
- The potential for undue influence where individuals are signing documents in their own homes rather than in law offices (to expand, you can never be completely certain who may be present behind a Zoom ‘background’.)
6. Business strategy and continuity
Lastly, all law firms have been required to consider how to adapt their business strategy, whilst at the same time ensuring the firm continues to perform on a day-to-day basis. The more established firms have been able to rely on existing disaster recovery and business continuity plans, which have now been or are in the process of being implemented. Nevertheless, even with these recovery and continuity plans prepared, it is unlikely these strategies have been developed with this singular crisis in mind.
Whilst the current focus for all firms (law or otherwise) is business survival, ongoing business strategy cannot be ignored. There is nothing callous about this; with the economy and regulatory environment changes, firms have needed to identify where their services can best support existing and (future) clients. A few elements that have been taken into consideration include:
- The impact that COVID-19-related law changes might have on different legal specialties (for example, new insolvency law amendments are likely to delay a considerable amount of insolvency litigation);
- The impact of economic changes on specific industries that the firm serves, such as property, construction and transport sectors;
- The ability of lawyers to engage clients in other geographical areas, for court proceedings where there is no longer a need to be physically present with the client;
- An increased demand for alternative dispute resolution in response to adjourned civil court hearings.
On most accounts, lawyers have adapted well to a remote working environment and new online court processes. Lawyers and firms that continue to succeed will be those that can remain productive and compliant in a remote environment, whilst continuing to optimising their services with ongoing economic and regulatory changes in mind.
Lawyers and firms should feel emboldened and reassured that adaptation is possible, and confident that they can continue to perform at superior standards and be impactful in their work despite the current challenges. Whilst introducing new and unfamiliar systems may not be entirely seamless to begin, with time, understanding and additional training these structures will be sure to support this industry’s continued success for the coming weeks and beyond.