Managing your practice during COVID-19: A guide

With the COVID-19 pandemic causing so much upheaval, it can be difficult to know how one should operate in this environment. With regards to legal services, much has changed, but some things, such as a lawyer’s ethical obligations, remain the same. The Society appreciates the challenges facing the profession and is committed to ensuring that the profession can navigate this trying time while limiting unwanted professional risks. The following article sets out to remind practitioners of their regulatory obligations, and to provide some guidance where the current circumstances create practical, procedural or ethical challenges. The article also summarises some of the temporary measures the Society has put in place to assist members during this time, and compiles some of the key advices and updates relating to providing legal services during COVID-19.

Ethical Obligations

Practitioners are doing everything they can to continue providing legal services in these extraordinary circumstances, but are having to rethink and change the way they practice and are facing new difficulties and challenges on a daily basis. Despite this, it is still business as usual with regard to statutory and professional obligations that have not (at the time of print) been subjected to temporary COVID-19-relief legislative amendments.

Practitioners are therefore encouraged to still be mindful of the ethical and statutory obligations that continue to apply notwithstanding the current circumstances.

What has changed, and may continue to change, is how these obligations are observed in specific circumstances. Importantly, it’s not about whether you can comply but about how you do so in your particular circumstances.

How you comply with any professional obligation will depend on factors such as the resources available to you, the nature of the matter, what orders have been made and applicable time limits, availability of alternatives for attending court and obtaining client instructions in person. You will need to satisfy yourself that the steps taken by you in client matters permit you to observe your professional obligations under all of the circumstances.

Practitioners are further encouraged to not only consider all available options and but also to ensure that the decided course of action is reasonable in the particular context. We would encourage the making and keeping contemporaneous notes of those decision-making processes for risk management purposes.

Although the Society does not have the power to excuse compliance with statutory or professional obligations, if you are unsure about your compliance obligations in a particular circumstance you can contact Ethics and Practice for assistance either by phone or by email.

Administration of Justice

In the same way that your professional obligations remain so does your primary obligation to the administration of justice. The key is to identify the difficulties that are in play and then to find alternative means by which they can be overcome.

If for example an order has been made for something to be done within a certain time frame or in a certain way, and you have exhausted all reasonable alternatives for complying with the order but are unable to do so, we recommend that you notify the Court and the other side (making sure that you observe any applicable rules for doing so) at the earliest possible opportunity and ask for direction on how to proceed.

Clients’ Interests

Your obligation to ensure that your clients’ interests are protected remains. The issues that may arise will vary, depending on the type of work, legal services being provided, your client base, and the particular rules and procedures that apply to the matters in which you are engaged.

These factors will influence any decision to operate your practice in isolation. We strongly encourage practitioners to take all reasonable steps to inform clients about any changes to the operation of the practice and the means by which contact with them is to be maintained.

Informed clients are generally less likely to complain.

Despite the difficulties facing practitioners we encourage and reinforce the importance for you to continue to deliver legal services as promptly and diligently as reasonably possible in the circumstances.

Your obligation of competence still requires you to be aware of timeframes and limitations which may exist in a client matter and are required to be fulfilled to protect the clients’ interests.

Again, careful documentation of all relevant factors is important from a risk management point of view and in addition there is a standing invitation to have a conversation with Ethics and Practice if required.

Confidentiality

Now more than ever we encourage practitioners to consider the effectiveness of their measures for protecting confidential client information where working from home is the new normal. It is still important that client confidentiality is not compromised by the need to work remotely. Most practices will already have in place arrangements to protect client information for remote workers. This could include providing limited information to those workers who do not usually work from home and may not have access to secure IT or other adequate equipment.

For instance, you may consider redacting information shared with home workers in that situation. It is a good idea to document the details of the arrangements you have put in place to keep client’s information confidential. You should also consider raising the issues with clients so they are aware work is happening outside the office and what safeguards you have put in place. This gives clients the opportunity to raise objections if they have concerns.

There is no change in the Society’s

advice with regards to cyber security and all usual cyber safety measures should still be followed. Never provide or receive bank account details via email. When dealing with clients by phone, and visual is not available, satisfy yourself that you are actually speaking to your client. If you do not recognise their voice you could ask them to confirm what you discussed at the last meeting or consultation, or to tell you the date and location of that meeting.

Alternatively, you could allocate code words to clients for use when communication by phone and/or by email. When communicating by phone with clients, you cannot control the environment they are in but it is useful to just remind them of the importance of maintaining confidentiality and encourage them to take the call away from others if necessary.

REGULATORY REQUIREMENTS Supervision

It is important that employers and principles implement effective means by which they can continue to supervise legal work.

Matters to be addressed for remote supervision include the following: • Frequency of contact between the supervisor and the supervised person. • Awareness of the supervisor about the work being done by the supervised person. • The ability for the supervisor to exercise the requisite degree of management or control over the work being done by the supervised person. • The ability for the supervisor to otherwise guide and mentor the supervised person. • The ability for the supervisor to satisfy themselves that correspondence and advice is well founded, endorsed, and capable being signed off.

The level of the supervision that will be required will vary depending on the experience, qualifications, type and complexity of the work being undertaken by the supervised person. LPEAC has published guidelines for the supervision of practitioners working from home or remotely in the context of COVID-19 arrangements.

View the LPEAC Guidelines - Remote Supervision Arrangements for PLT Students; and Category C (Restricted) PC Holders During COVID-19 Restrictions on the Society’s COVID-19 Resources webpage.

MCPD Period: 5 Unit Cap Lifted

The Legal Practitioners Education and Admission Council (LPEAC) has lifted the five-unit cap on pre-recorded or web based CPD activities. In addition, it has extended the deadline for compliance with the Mandatory Continuing Professional Development requirements for the CPD year commencing on 1 April 2019 and concluding on 31 March 2020 to 30 June 2020.

Therefore, practitioners who are not yet compliant, unlike in previous years are not required to complete rectifications but only need to complete their MCPD obligations by 30 June 2020.

Notwithstanding the extension of time, practitioners are encouraged to complete their prescribed MCPD as soon as possible (noting that there is no limit on the number of units claimed for prerecorded or web-based material which can be accessed from home) so as not to delay or impede the renewal of practising certificates on 1 July 2020.

Combined Trust Account

Section 53 of the Legal Practitioners Act 1981 requires law practices to transfer a portion of the funds in their legal practitioner trust account to the combined trust account (CTA) within 14 days after 31 May and 30 November. To assist in easing the pressure on practitioners in these times the Society has: • Written to approved ADIs requesting them to ensure that CTA account establishment and the making of deposits (and withdrawals) can be done electronically and without the need for personal attendance at the bank. • Implemented processes to ensure that the Society will be taking a proportionate and pragmatic approach with respect to the imposition of penalty interest and, where it is appropriate to do so, will be remitting interest in part or in whole. • Written to the Attorney-General to request that the requirement to do the calculation and make any deposit that is needed be delayed (on the proviso that when it is done the calculation is based on the situation as at 31 May 2020).

The current Combined Trust Account (CTA) period will end on 31 May 2020 with deposits or notices of withholding due by 14 June 2020.

To assist the profession the Society has decided to make its online CTA calculator available to all members of the profession on a temporary basis. The CTA calculator is a member service funded by and usually restricted to Society members. The calculator is being made available on a temporary basis to the wider profession as a result of the COVID 19 emergency but will revert to being a member service only when restrictions are relaxed.

The Society reassures the profession that it will be taking a proportionate and pragmatic approach with respect to the imposition of penalty interest in the event of CTA non-compliance and, where it is appropriate to do so, will be remitting interest in part or in whole (in accordance with its internal policies).

Regulation 33(3)(b) Waiver

Regulation 33(3)(b) of the Legal Practitioners Regulations 2014 states that, during April of each year, all law practices with trust accounts must give the Society written notice of the associates of the practice (including their full name and residential addresses) who are authorised, as at 31 March of that year –i. to sign cheques drawn on a general trust account of the practice; or ii. otherwise to effect, direct or give