Ethical obligations during lockdown
Posted 23 July 2021
Lockdown has once again forced the practitioners to rapidly adapt to the way they serve their clients.
Even though many practices would have fine-tuned transitional plans that allow them to quickly move to a working from home environment, the lockdown can still pose a number of challenges for practitioners who still have stringent ethical obligations to comply with but have extra lockdown-related barriers to contend with.
The key message is that practitioners need to be mindful of how they can continue to comply with their obligations in their particular circumstances.
How you comply with any professional obligation will depend on things like 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 should 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 are invited to contact Ethics and Practice for assistance either by phone (8229 0200) 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 and are still 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
What will not change is your obligation to ensure that your clients’ interests are protected. 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 people are going to be working from home. 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 our advice re 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.
See the LPEAC Guidelines - Remote Supervision Arrangements for PLT Students and Category C (Restricted) PC Holders During COVID-19 Restrictions.
Ethics and Practice visits and legal practice advice
Trust Account inspections will be postponed or completed remotely, eg via correspondence if appropriate. The relevant law practices will be separately contacted.
For enquiries with regard to:
Execution of Wills during COVID-19
LSSA Standard Property Documents - COVID-19 Annexure
Video Conferencing during COVID-19
Witnessing of affidavits and statutory declarations and Grants of Probate during COVID-19
Or if legal practitioners have any concerns about practice arrangements as a result of the spread of COVID-19 please do not hesitate to contact the Ethics and Practice Unit of the Society by phone 8229 0200 or email (
ethicsandpractice@lawsocietysa.asn.au) for advice and assistance.
Practitioners are also encouraged to refer to Society’s COVID-19 webpage for further information and support.
LPEAC Remote Supervision of Practitioners Subject to Supervised Practice (Category C PC) During Covid-19 Restrictions
Posted 22 July 2021
Please click
here to review the Guide
Please click
here to download a suggested Remote Supervision Diary Template.
If you have further questions please email us at
ethicsandpractice@lawsocietysa.asn.au