Coronavirus (COVID-19)—professional conduct for in-house law
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This Lexis®PSL Practice Note reflects advice issued by the SRA and Law Society on the impact of the coronavirus (COVID-19) on a range of commercial and professional conduct issues. This advice is aimed at law firms, but some of it is relevant to in-house lawyers. It is supplemented in various places with more detailed guidance from LexisPSL.
For guidance on issues other than relating to professional conduct, see Lexis®PSL: Coronavirus (COVID-19) toolkit. This covers a variety of subjects such as employment issues, business continuity, contracts including execution issues, dispute resolution and tax.
SRA’s regulatory approach
The SRA expects solicitors to continue to meet the high standards the public expects. This means you must do everything you reasonably can to comply with the SRA’s Standards and Regulations and follow the SRA Principles—including serving the best interests of your client and upholding the rule of law. For guidance on your obligations under the Standards and Regulations, see Practice Notes:
- SRA Standards and Regulations 2019—in-house lawyers
- SRA Code of Conduct for Solicitors, RELs and RFLs—for in-house lawyers
- Conflicts of interest, confidentiality and disclosure 2019—in-house lawyers
- Reporting breaches to the SRA—in-house lawyers
The SRA will take a proportionate approach, including to enforcement. If the SRA receives complaints, it will take account of mitigating circumstances as set out in its enforcement strategy—see Lexis®PSL Practice Note: SRA enforcement strategy. This includes focusing on serious misconduct and clearly distinguishing between people who are trying to do the right thing and those who are not.
The SRA recommends that if you do face compliance difficulties linked to the virus, you should clearly document the approach you have taken. If you are unsure about a specific scenario, you should contact the SRA’s professional ethics team. As at the date of publishing this guidance, the professional ethics phone lines were closed until further notice. However, you can email at firstname.lastname@example.org.
The SRA has also published guidance on specific issues, which is reflected in this Practice Note where appropriate.
General employment issues
The Law Society guidance includes questions and answers on sick pay and working from home, but the answers are not specific to the legal sector.
For more comprehensive guidance on issues for employers, see Lexis®PSL Practice Notes:
- Coronavirus (COVID-19)—issues for employers
- Coronavirus Job Retention Scheme (original version to 30 June 2020)
- Coronavirus Job Retention Scheme (revised version 1 July to 31 October 2020)
- Coronavirus Job Retention Scheme (extended version from 1 November 2020)
- Emergency volunteering leave
See also Lexis®PSL Precedents: Letter—from employer to employee regarding flexible furlough arrangements (extended CJRS from 1 November 2020) (or Letter—from employer placing employee on furlough (Coronavirus Job Retention Scheme) [Archived]) and Policy—temporary homeworking arrangements.
Keyworker status of lawyers
The government has confirmed that keyworkers include those essential to the running of the justice system. According to the Law Society, this includes:
- advocates (including solicitor advocates) required to appear before a court or tribunal (remotely or in person), including prosecutors
- other legal practitioners required to support the administration of justice including duty solicitors (police station and court) and barristers, solicitors, legal executives, paralegals and others who work on imminent or ongoing court or tribunal hearings
- solicitors acting in connection with the execution of wills
- solicitors and barristers advising people living in institutions or deprived of their liberty
Only legal practitioners who work on the types of matters, cases and hearings listed above, will be permitted to be classified as a keyworker. Some legal practitioners will intermittently fall into this category because they need to provide advice or attend a hearing for an urgent matter relating, for example, to safeguarding of children or vulnerable adults, or a public safety matter. For the limited time required to deliver this work, a legal practitioner will be a keyworker.
Working from home and operating your office as a workplace
The government has published guidance on safe return to the office. The Law Society guidance is aimed at law firms but is of general application. According to the Law Society:
- each organisation will need to translate the guidance into specific actions, depending on its size, management and structure
- the guidance does not supersede any legal obligations relating to health and safety, employment or equalities—existing obligations must be complied with, including those related to individuals with protected characteristics
- organisations should make every reasonable effort to enable working from home as a first option—no one is obliged to work in an unsafe work environment
- if staff have to be in the office, they should stay two metres away from each other, if at all possible
For more guidance, see Lexis®PSL Practice Note: Coronavirus (COVID-19)—safe working in an office environment and Precedent: Coronavirus (COVID-19) workplace risk assessment and plan—offices.
There are real information security considerations related to the coronavirus. You should assess your information security risks and issue guidance to staff. Some key risks are set out below, but see also Lexis®PSL subtopic: Information security.
Phishing scams and other fraud
Attackers will be trying to exploit staff concerns by sending fake emails, creating malicious web sites and attachments, and requesting charitable contributions. This could lead to loss of personal information, unauthorised access to your network, and financial fraud.
Personal devices and public Wi-Fi networks
Members of the in-house team may be tempted to perform work on unapproved personal devices. This is risky because personal devices are not managed by the organisation and could allow attackers to access them (and the organisation’s data). In addition, team members may use public Wi-Fi networks in public areas to gain internet access.
Transferring work data using personal email and cloud storage accounts
Team members may be tempted to send information to their personal email accounts or their personal cloud storage accounts. This is dangerous from an information security perspective and may also constitute a breach of your professional duty of confidentiality.
Physical document management
Team members may be tempted to print and take documents home for review. Once completed, they may tear them and throw them in their domestic bin. It is easy to misplace or lose paper documents at home, leading to information leakage. Throwing documents in a domestic bin makes it possible for attackers to retrieve and put documents back together.
Insecure conference call lines
Beware the temptation to use free conferencing services for team or client calls. Without appropriate agreements and safeguards in place, you will have no control over what the service does with data relating to that call, eg they may record conversations and use them for marketing. The service could also be insecure and lead to exposure of confidential/privileged information.
Provision of legal services
All in-house lawyers must have measures in place to keep clients’ information confidential. This is required by the SRA regime and the law. See Lexis®PSL Practice Note: Conflicts of interest, confidentiality and disclosure 2019—in-house lawyers.
Most in-house teams will already have 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, eg you may consider redacting information shared with home workers in that situation.
The SRA recommends that you document details of the arrangements you have put in place to keep clients’ information confidential. You should also consider raising the issues with the client (in this case your employer) so they are aware work is happening outside the office and what safeguards you have put in place. This will give your employer client the opportunity to raise objections if they have concerns.
If there is a breach of confidentiality and a complaint is made, mitigating factors would be taken into consideration in line with the SRA’s enforcement strategy.
Inability to provide services
You should notify the client (ie your employer) as soon as practical that due to coronavirus issues the service cannot be provided in-house and suggest they try another solicitor. For in-house lawyers, this may involve recommending an external law firm.
If a particular matter is due to complete shortly then seeking a deferral of completion is a sensible step, or asking another colleague to complete the deal.
You should ensure that your out-of-office response for emails has the latest information. It is important your employer client does not lose out because they think you are going to respond.
Home visits, care home visits, hospice and hospital visits (particularly to seriously ill clients)
The guidance given by the SRA and Law Society is intended for law firms advising external clients. However, in-house lawyers may be asked to visit their employer client at home or even in hospital. You should therefore read the following Law Society advice and bear this in mind when responding to any such request. You should also ensure you act in accordance with prevailing government requirements and advice, which may well supersede advice given by the Law Society or SRA.
The Law Society recommends following the government advice, including on good hygiene and social distancing, which is being regularly updated. If the client is in a risk category, it is preferable to find a way to deal with the matter remotely, eg by Skype. If you judge that a physical visit is imperative, choose personnel who are not a risk to the employer client and who are not at high risk themselves. Both the employer client and the employee will need to agree to the meeting despite any risk.
Witnessing signature of a legal document by virtual means
The SRA answers this question on the section of its guidance dealing with wills, however the answer does not specifically appear to relate to wills but to legal documents more broadly.
The requirements for signing or witnessing legal documents are generally set out in legislation, case law or by the recipient such as the Land Registry or Companies House. These requirements can only be amended by the Government, the courts or the bodies setting those requirements.
Where the law allows flexibility and does not require physical attendance, so long as the solicitor has ensured their actions meet the legal requirement and has addressed any risks for their client, the SRA does not consider its rules would be engaged.
If you are making such judgement calls, the SRA expects firms to keep appropriate records of your decisions, how you have addressed the legal requirements and any risks for your client.
For guidance on legal issues, see Lexis®PSL Coronavirus (COVID-19)—remote execution of documents resources—checklist
The SRA regime requires that you perform all undertakings given by you within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time. Before giving any undertaking in these current circumstances you should always consider if you can properly implement it and you should have regard to all the eventualities that may affect your ability to perform it. You may want to add something new into your undertakings to take account of the risk of delay due to the effects of coronavirus.
If you find yourself in a situation that you are not able to comply with an undertaking that you have given, you should let your client or the other side know as soon as possible. If a failure to comply or delay is beyond your control due to the impact of coronavirus, should any complaint be made, this would be taken into account by the SRA as a mitigating circumstance. See Lexis®PSL Practice Note: Undertakings and the SRA 2019.
However, the undertaking may still be enforceable in the court. See Lexis®PSL Practice Note: Undertakings and the court.
Advice for litigators
See Lexis®PSL Practice Note: Coronavirus (COVID-19) implications for dispute resolution.
The Law Society has produced separate guidance on Coronavirus (COVID-19) and residential conveyancing transactions. This is being updated regularly and it is therefore recommended that you consult the guidance directly. See also Lexis®PSL Practice Note: Coronavirus (COVID-19)—implications for property.
Visiting police stations, prisons or courts
This seems to be an evolving issue—see: Law Society, Coronavirus (COVID-19) information for members (Advice for members visiting police stations, prisons or courts).
See also Lexis®PSL Practice Notes:
- Coronavirus (COVID-19) implications for dispute resolution—Remote hearings
- Operation of employment tribunals during the coronavirus (COVID-19) pandemic
International travel for work
See the government’s Coronavirus travel advice.