Coronavirus/COVID-19 – Regulatory Update

Our lawyers' liability and regulatory team take a look at the areas of solicitors' regulation that are likely to be impacted by Coronavirus/COVID-19 and the consequent move towards working away from the office.

The past days have seen many law firms, in line with increasingly strict Government advice, move to remote and home-working wherever possible in an attempt to slow the spread of the coronavirus/COVID-19 pandemic.  This has changed the way in which lawyers are dealing with cases and communicating with each other, with clients, and with third parties such as witnesses, Courts, and Tribunals.  Below we set out a brief summary of the some of the main areas of regulation which might need to be considered in more depth to ensure that individuals and firms are meeting their obligations and that the profession maintains public confidence in these challenging times.

Confidentiality and Communications

Remote and home-working will inevitably mean that client data is being accessed outside of a secure office environment.  Solicitors and firms must ensure that they comply with their duties of confidentiality and their obligations under the GDPR in protecting client data and confidential information.  For example:

• Electronic data will be more secure where it is held in encrypted form on a computer, laptop, or phone supplied by the firm with suitable security software and secure VPN.  Where employees are expected to access client files on their own equipment, extra care should be taken to ensure that confidentiality is preserved and that appropriate anti-virus software is installed.
• Individuals should be reminded of their own obligations to ensure confidentiality is upheld and to treat all client information with care, particularly where, for instance, multiple individuals from different companies might be working in the same household.  This applies not only to the security of hard copy and electronic documents, but also to telephone and video calls where confidential client information might be discussed.
• It would be sensible to maintain a log of all hard copy client papers (particularly original documents) removed from the office.  Firms should consider issuing guidance to remote workers as to how hard copy papers should be stored securely outside of the office.

In addition, with a move to working from home, it can be tempting to become more relaxed about client communications and rely on more immediate forms of remote communications.  Solicitors should consider carefully the suitability and security of online messaging apps and data protection concerns that might arise from client information being transmitted on such third party platforms.

Similarly, instant messaging services will generally be unsuitable for the provision of advice and/or receipt of instructions, where the information needs to be clearly recorded on the file.

Protecting Client Monies

A firm's obligations in respect of AML and fraud remain of constant importance.  In circumstances where support services are also likely to be operated remotely, firms should ensure that procedures are clearly communicated and stringently applied throughout this time.

Further, there has been a reported rise in coronavirus-related phishing and other cyber-attacks as unscrupulous individuals seek to exploit the current situation.  Firms should warn employees to be extra-vigilant and should notify employees of any specific known risks as they arise.

Solicitors should also be aware of their obligations under the SRA Accounts Rules and ensure that they continue to be scrupulously applied at all times; there can be no relaxing of the rules even in these unprecedented circumstances and in the difficult financial times likely to follow.

Standard of Service

Solicitors will be aware of their obligations to provide a proper standard of service to clients and to act in their best interests.  In an environment where guidance is changing on at least a daily basis, everyone should try to ensure that they are keeping up to date with the latest advice issued by Courts, the Law Society, and the Government.  For example, steps are quickly being taken to move towards audio and video Court hearings wherever possible, to deal with papers electronically, and to allow for a simpler extension of deadlines where necessary due to coronavirus-related factors.

Firms must ensure that everyone is aware of the latest guidance and that their advice to clients and approach to litigation and other matters is updated accordingly.

It might also be more difficult to maintain regular and proper supervision outside of the office where members of a team are scattered in various locations.  Supervisors should ensure that they maintain regular contact with their team members and it might be sensible to adopt regular file reviews and discussions via telephone or video link.

Duty to Employees whilst home working

Importantly, firms continue to have a duty towards their employees whilst working from home; this can include their physical health – in which regard thought should be given to whether any support can be given to employees concerning equipment (seating, monitors etc) that might be needed throughout their time at home – and their mental health, which is likely to be strained by long periods of social isolation.  Firms should encourage remote socialising (i.e. not purely work-related communications) by employees via telephone or video apps in order to maintain a level of normality of contact, and care should be taken to check in regularly with any individuals not engaging in contact.

Routes to Qualification

Finally, there will be numerous law students worrying about their pathway to qualification since the SRA has confirmed that LPC exams will not be moved online and it therefore appears likely that they will be postponed.  However, the SRA has confirmed that potential trainees can be taken on for a period of recognised training before they have completed the LPC.  Firms will need to consider and review additional guidance on this as it develops.

Conclusion

These are unprecedented times. It would be sensible for all firms to undertake a full review of procedures to ensure they are suitable for mass home-working, and to deal with any additional risks identified.  When people are working in unusual circumstances and away from the formality of the office for a prolonged period, particularly in difficult financial circumstances, it is easy for procedures to relax and standards to be kept less rigidly.  The onus is on us all to ensure that the profession maintains public confidence so that it continues to flourish when the trying times are over.