Coronavirus and the regulatory and disciplinary landscape for lawyers and law firms
Posted on 07 May 2020
The coronavirus pandemic prompted sudden and sweeping changes to the way lawyers work, forcing us from offices, meeting rooms and courtrooms and onto Teams, WhatsApp and Skype. It’s no exaggeration to say that things may never be quite the same again.
What has not changed, however, is the SRA’s stance that, despite the challenges we all face, firms and individuals must still meet its “high standards”. It expects firms (in particular) to have planned for “disruption” and to be activating action plans – but few can have dared to imagine it would be on this sort of scale when those plans were begin drawn up. This has been a sharp and, in some cases, sustained learning curve for so many firms and their staff.
Whilst expecting us to meet its standards, the SRA has, though, suggested that it will take a “proportionate” approach to investigating complaints and taking enforcement action on matters arising during the current pandemic. Significantly, it says it will have in mind, in particular, whether those who have encountered regulatory issues have been trying to do the right thing. Quite what that looks like in practice remains to be seen.
As with steering any course, leading your firm’s responses to the Coronavirus situation requires careful thought, effective communication and an adaptive approach. Whilst every firm is different, there are some common themes that will resonate with practitioners throughout the country.
If you need advice on a topic that isn’t covered in this guide, or you need more detailed guidance on reporting, ethical decision-making or any regulatory matter, then please do get in touch. Although we’re working from home, we are still available to hold a confidential, free and no obligation discussion with you about your options. Above all, keep safe.
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For many managers and fee earners with budgetary responsibilities, the question of finances and financial security is very likely to be at the forefront of their minds. Some practice areas are seeing a surge in enquiries, whilst others are experiencing a decline. The regulator expects firms to have contingency plans in place, to enable businesses to continue and clients to be served, though whether many will have had a global pandemic factored into their modelling is a different matter.
If you find your firm is struggling, make sure you have in mind your duties to inform the SRA if it becomes necessary. It is always better to look for help than to try to cover short-term cashflow issues through what might be called ‘creative accounting’. If that were to come to light later on, there would be potentially very serious consequences. We return to the question of finances towards the end of this guide.
Law firms and individual solicitors will need to take stock at regular intervals to give thought to how best – and safely – to respond to new and different pressures and opportunities. Some firms might alight on a plan to redeploy staff with lighter workloads to other teams or cases; or consider taking on a new area of work in light of an increase in enquiries. In any event, firms and individuals will need to think carefully about the regulatory risks of doing so. You will need to think about whether you have the capacity and competencies to make these sorts of changes and reflect on the need for additional training and supervision. And remember to consider whether your PII insurer needs to be informed of any new areas of work before you embark on them.
Firms should give thought to whether staff are adequately trained to deal with new and changing situations. This should be kept under review, to ensure training needs are identified and addressed and risks reduced and managed accordingly. This requires individuals to speak up if they find they need help; it is an apt moment for practitioners to reflect on their training needs, learning and development objectives and the direction of travel of their practice. By providing training including through third parties, firms create spaces where staff can ask questions and flag issues they’ve encountered, and help to build a positive and blame-free culture that reminds staff of their responsibilities.
The SRA expects firms to have effective systems for supervising clients’ matters. It also expects individuals with supervisory and managerial responsibilities to remain accountable and effectively supervise work being done for clients. With workforces scattered to home offices, kitchen tables and huddled up in bedrooms, gone - for example - is the opportunity of casually popping in to see a senior colleague to sense-check that awkward instruction from the demanding client. Firms and individuals will want to ask themselves what effective supervision looks like where teams are working in ways and on a scale unimaginable eight weeks ago.
Good communication is integral to effective risk management. Consider how best to communicate with staff firm-wide and at departmental, team and individual levels to ensure people remain engaged, clear about their responsibilities and accountable. Mistakes happen but, often, it is how they are subsequently handled where things can go wrong. Create open lines of communication and reporting. Be open and honest and encourage the same in others to identify problems, find solutions and create a unified workforce at an unsettling time. Remind staff who they can speak to if they need support both within and outside of the business; see below for some suggestions of (external) Sources of support.
Firms will want to think about how best to communicate with clients and maintain and develop the client relationship at a time where face-to-face contact is not permitted. That might mean updating the firm’s privacy notice on any website and email signatures; it could also mean updating client care documents or revising client enquiry and onboarding processes to ensure a smooth and professional service. You may also want to think about updating agreements you have with counsel, experts and other third parties you work with, to ensure client data continues to be adequately protected. In any event, you’ll need to ensure your adapted processes remain in line with regulatory obligations.
In its coronavirus guidance, the SRA has indicated that its focus is “on serious misconduct and differentiating between those who have tried to do the right thing, and those who haven't.” With the SRA’s emphasis on demonstrating proper engagement on tricky issues, practitioners who clearly and accurately document their decision-making will be better placed to answer any questions from the regulator, should the need arise. By the same token, managers should think about the need to update and communicate policies to staff; and individuals should look out for changes that need to be made to processes and, particularly, report up difficulties or where things have gone wrong.
In its cybercrime Q&A, the SRA writes that “If you or your firm have experienced an incident that has affected client money or information, or that may have affected them, then you will need to report it to us, and where relevant to Action Fraud and/or the ICO.” With most of the legal profession in lockdown, the risk to physical documents being lost, stolen or the data contained in them otherwise being revealed in public is lower, but the risk of data being breached online has gone up. Personal data breaches still need to be made to the relevant person or team in your firm and, as ordinarily, the ICO must be notified without undue delay and, where feasible, not more than 72 hours after you become aware of the breach.
The SRA Standards and Regulations introduced clearer and enhanced obligations on individuals and firms to report potential serious breaches of the regulatory arrangements (see paragraphs 7.7-7.12 and 3.9-3.12 of the respective Codes of Conduct). Practices and practitioners still need to have those obligations in mind.
It is hard to remember a time when it has felt more important to be kind to others and to yourself. Looking after yourself and those around you (physically and virtually; in your professional, social and family spheres) will undoubtedly have a positive impact both on your work and on how your clients feel about your engagement with them.
Set boundaries around when and how you work and discuss these with family and colleagues to ensure the load is properly managed. Everyone is different and has different demands on their time, depending on their personal circumstances, including whether they’re expected to teach their children about quadratic equations between client or partnership meetings. A flexible approach will produce the best results. Give thought to those outside your immediate household – now is a good time to extend support to others and it can help to boost connectedness and positivity.
Firms and teams will need to keep looking at what is working well and what isn’t, so they can identify risks, any mistakes, changes that need to be made, as well as opportunities. It’s a good time to review the finances and strategies for the future or, to put it another way, it’s a good time to consolidate, without being complacent.
We must all continue to adapt to the situation as it develops; apart from doing so to ensure our businesses thrive, we must so that we can continue to best serve our clients and support the operation of the law. Whilst the situation has been, is and will be hard for many for a host of reasons, we must learn from it for the future. Some changes will have been sudden, whilst others will be incremental. Progress won’t always be linear, but by continually reviewing the situation, listening to feedback, making and recording modifications and repeating the process, we stand a good chance of keeping on course in the time of coronavirus.
The Law Society
The Law Society is continuing to publish a series of resources and support and information for its members, including on: preserving cashflow, business continuity, insurance renewal, practitioners as keyworkers, working from home, regulatory compliance and practice points.
The Law Society also has a series of helplines that can provide practical advice and assistance to solicitors and their employees.
In addition to its coronavirus update, the SRA has published answers to common regulatory queries and a cyber security Q&A. For specific queries that are not covered in the guidance, the SRA’s Professional Ethics team can be contacted by email.
LawCare’s mission to promote and support good mental health and wellbeing throughout the legal community. One of the ways it does this is by offering free, independent and confidential support to anyone in the legal community, including families and support staff, through its helpline, webchat and email service. The service is operating as normal, in spite of Covid-19.
SBA The Solicitors’ Charity is an independent charity working for solicitors and their families. It provides welfare grants, support with career transition and access to advice on welfare benefits and managing personal debt. SBA has established a £1,000,000 fund for solicitors most in need of support and a dedicated COVID-19 Support Hub on its website.