The national lockdown following the Covid-19 outbreak presents many challenges to law firms. People are operating largely alone, without ready access to colleagues, and relying on IT systems to do their jobs outside the disciplines of the office. In this note, Paul Smith, solicitor and senior risk management consultant at Travelers, looks at the risks to be aware of and the controls to put in place. (30 April 2020, not updated)
Your team will potentially face a number of challenges as the lockdown continues.
Covid-19 – People are naturally concerned about their future health or that of others. They may be coping with illness or have additional caring responsibilities, or be anxious about the economic impact of the lockdown on their business.
Dealing with change – Remote working full-time will be new for most people. Social distancing and the lockdown also mean doing legal work differently, with new issues, risks and processes, and potentially more work.
Work-life balance – Fulltime home-working blurs the line between home and work. Some colleagues or clients may see you as always 'at work' and always contactable.
More screen work – Remote working is largely screen-based. Outside of the office environment, with no colleagues and a lack of variety in the work activity, there are fewer prompts to take a break from the screen. Difficult deadlines or a 'long hours' culture make this worse.
Fewer ways to keep in touch – In an office it is easier to relay corporate news, discuss a matter, flag risks, identify opportunities to collaborate, spot when people need support, and to have informal contact in general. We have different types of conversations and the office provides lots of different ways to have them, even if it is just to say “Thanks for your help on that thing last week”, or “How are you?”.
Talking is more than words – When we do communicate remotely, it’s often harder, because much of what we receive from face-to-face conversation is non-verbal. It comes from a person's expression, demeanour, and body language. Voice-only communication is harder, as we try to fill in the non-verbal gaps, especially in meetings.
Reduced human contact – Humans are social animals. For the gregarious, or those living alone, limited human contact lockdown can be especially challenging.
Uncontrolled, the issues above can lead to communication breakdown, isolation, and ultimately disengagement. Some people will become stressed. We are also hearing reports of excessive fatigue, with people feeling drained at the end of a day’s remote working.
Poor communication, disengagement, stress and fatigue all create risk. Disengaged people may find it difficult to remain focused. Stressed or tired people are more likely to make a mistake. Fatigue also affects the brain in ways similar to intoxication, so it can lead to people taking more risks.
Remote working makes managing all of these issues harder. Reduced access to people means that issues can be hidden or go unaddressed.
Firms should aim for an environment in which people are, and feel, supported in doing their job.
Maintain lines of communication. While it may not match the richness of the office environment, you can still go some way to match the medium to the message:
- Regular Skype/conference-call team meetings to 'take the temperature' by checking progress and resourcing, passing on messages from senior management at the same time
- Emails to provide guidance on a particular issue or to confirm key developments
- One-to-one telephone/Skype calls, where people need to discuss particular matters in detail
- IM/WhatsApp for brief, impromptu, “How are you?” conversations
Encourage people to keep in touch with each other
This maintains the informal links they have with colleagues from the office, boosting spirits.
Prolonged remote working may have health and wellbeing impacts.
There is further analysis here from our colleagues in Risk Control on Covid-19’s impact on people, and some suggested controls.
Legal service delivery
The lockdown and social distancing can affect both the services offered by a firm and the way the service is delivered. Firms will need to assess the impact of the lockdown on each retainer.
As individuals relocate to home-working, any breakdown in communication creates risk. Clients may be unaware of how the lockdown affects their retainer, in terms of time, cost, and the service that can be delivered.
Communication with the client
Establish what your client wants to do. Continue with the matter, suspend it, or discontinue it.
Notify the client if:
- Contact details change
- The lockdown will affect the performance of the retainer in some way, eg court closures or restrictions on travel
- Your personal circumstances prevent you from completing the retainer, eg sickness, self-isolation, or caring commitments
Consider adopting a communications protocol. This helps manage the flow of information by identifying who will communicate with whom, when and in what format. It can also reduce the current heightened risk from cyber criminals, for example by confirming what you will and will not discuss in emails. Clear communication will also help you to establish the key facts of the matter and to identify and address assumptions. Limited grasp of the facts and assumptions by either the lawyer or the client are both factors that can lead to errors and claims.
Document the retainer
Confirm the terms of the retainer and its scope at the outset. Record any variations in writing.
Manage and track progress
Use the retainer to control the progress of the matter.
Be especially careful around advice given and instructions received. Seek acknowledgement from the client.
The support infrastructure
People and legal service delivery depend on a range of support systems. These may be harder to replicate remotely. Problem areas include supervising and supporting people, assurance around compliance, and maintaining confidentiality.
The SRA has said that it will take a proportionate approach in enforcing its standards and regulations but these still stand. Failures by firms and individuals during the lockdown can still result in referral to the regulator and sanctions, as well as generating claims.
Maintaining supervision remotely
Remote working means limited opportunities for informal supervision. Fewer issues can be picked up from an overheard telephone conversation or informal conversations. However, a lot of activity will take place on the file, wherever people work. This can be reviewed remotely, using conflict checking and matter opening systems, case management software, e-mail accounts, centralised diary systems, and file lists.
Automatic prompts will also help you identify potential issues. For example, prompts in due diligence processes or around service level agreements; flagged keywords in email traffic; impending time limits; budget issues; rising/falling caseloads; and signs of inactive files.
You may also be able to identify particular needs. For example, what information are people looking for on your intranet?
Confirm peoples’ authorities
Check that everyone is clear about their authority. What is the nature of work they can and cannot do? What are their financial authority limits? Who should the person speak to if any authority is likely to be exceeded? This will also provide a guide to the level of supervision that someone needs.
Keep on auditing and appraising
Where possible, use this to provide a check on quality and to spot issues.
Remote working is outside the normal secure office space. People are relying on their own internet connection (or those in public spaces). Furthermore, they lack the office facilities and discipline which goes with protecting confidential material. While the individual will appreciate the rules, those they live with or come across outside may not.
For information on the key cyber risks in homeworking, see the guidance note on Cyber security for law firms FAQs (by Peter Wright, the managing director of Digital Law and chair of the Law Society Technology and Law Reference Group). There is also more Travelers’ content on our cyber insurance page.
Hard copy documents
Nowadays there may be less reliance on paper, but it still has its uses. For example, many people find proof-reading documents easier when they are printed out.
- Use a log to record files and papers which people are working on at home, with signing-out and signing-in. Photographing any files that leave the office may help to maintain records.
- Focus on maintaining confidentiality. Can you easily keep track of the files when working at home? Can people see them as you work on them? Are they stored safely? Is access controlled?
- Plan for the disposal of confidential material, including rough notes and drafts. This is easier in the office, with its confidential waste disposal. Are there suitable facilities away from the office – paper shredders, for example?
- Consider the perils of working on the move. For example, it can be difficult to maintain confidentiality when working in public spaces or on public transport – although this is probably a reduced risk with the Covid-19 restrictions on movement. However, think about privacy screens on laptops. Be vigilant about protecting client papers, as we have had cases where people were transporting files in their car and the car was stolen.
There is further comment on organising remote working in a Travelers White Paper on the workplace.
Related to all of this is the impact of GDPR. There is further guidance in this article on GDPR for law firms
A strong risk culture underpins the delivery of a safe legal service, protecting the interests of all involved in a matter.
Maintaining a focus on risk may be challenging outside the disciplines of the office, with limited communication and when people are coping remotely with new challenges in service delivery. A weakened risk culture raises the potential for claims and breaches of regulatory or professional obligations.
The focus here is on raising and maintaining risk awareness and encouraging candour. According to the HSE, this means:
- Clear messages from management about the importance of, and need for, risk management
- Everyone having a clear role to play in managing risk – the message here is that everyone within the firm is a risk manager
- Providing opportunities for learning, whether formal or informal
- Everyone being accountable for risk outcomes
- Communication about risk, both in terms of general trends and threats, and the firm’s own risk profile – this is especially important now, given the lack of opportunity to reinforce messages face-to-face
The objective is to have a 'just culture', where people are confident that they will not be punished for an honest mistake, and errors are an opportunity to learn lessons.
There will be further analysis of Covid-19’s impact on risk culture in a note to follow from Sharon Glynn, Senior Development Underwriter at Travelers
- Covid-19 and the legal sector
- Five highly practical factsheets explaining how to avoid professional negligence claims in residential conveyancing, wills and probate, commercial property, company and commercial, and commercial litigation
- The Law Society information for members on Covid-19
- PI insurance for law firms FAQs: Part one (50 FAQs)