We Will Survive

The hands of law firm leaders have been forced by an invisible contagion and how they react to the unprecedented challenges will reflect on them for years to come. Some firms invited adverse publicity by their initial refusal to allow employees to work remotely until staff objected. In some respects, the balance of power has been upturned in favour of the workforce in the blink of an eye. On the very day Prime Minister Boris Johnson imposed the UK lockdown, one unnamed firm was still reportedly refusing to allow staff to work from home, despite each having the capability to.

As one lawyer observed, any firm adopting such an approach is willingly disregarding its duty of care to protect the health and safety of its employees, and others who might be affected by their failure to heed government restrictions. It’s tempting to be confident this will be a short-lived crisis, but treading the line between optimism and realism is a challenge, as President Trump’s rhetoric – unbalanced towards optimism – demonstrates. Most firms have responded robustly and responsibly. From their Covid-19 war rooms, firm leaders are planning and stress-testing new ways of working. With the “wizardry of modern technology”, to quote the Prime Minister, they are looking for the holy grail: a Covid-19 resistant style of working which will protect people; ensure business continuity; minimise the increased risk of fraud; satisfy the regulator; and protect their bottom line.

Communication is fundamental. No one is responding to the crisis in a vacuum. Any strategic move by firm leaders causes a ripple effect, just as one infected person is thought to infect around three others. This means explaining to your workforce the impact of your decisions both on them and clients. Your staff are now dispersed so, more than ever before, effective communication must be a two-way street.

Do your employees feel free to talk to someone within the firm about their own difficulties? Clients are also under huge pressures. We’re subject to the severest restrictions on our freedoms for decades. The uncertainties of ongoing legal issues will compound the stress on clients so lawyers should work hard to maintain communications with clients. Meanwhile, it’s business as usual for the regulator. Firms who fail in their regulatory obligations in their crisis response still risk attracting the Solicitors Regulation Authority’s (SRA) attention.

The SRA has been quick to clarify its approach to compliance: the profession is still expected to meet the high standards the public expects, doing “everything they reasonably can to comply with our rules, and follow our Principles… we expect firms to have appropriate contingency plans in place for disruption” – but will take a “proportionate approach” to compliance and enforcement. Firms who defy or misapply the government guidelines (“orders” as Johnson emphasised) also risk legal action.

We can expect a raft of claims some of which will undoubtedly raise novel, untested issues of law. The Twitter legal community has already been chewing them over, with potential avenues ranging from employers’ liability insurance, tortious liability, automatic unfair dismissal; contractual claims and data protection breaches. Some commentators suggest firm leaders could face criminal charges, for instance, under the Health And Safety At Work Act. One can imagine a firm already preparing a ‘Covid-19 legal triage system’ for launch somewhere, directing potential legal claims to the right team (if that’s you – do get in touch).

Contrary to what President Trump likes to tout, it won’t be business as usual any time soon. But with true grit – along with the sounds of Gloria Gaynor singing “I will survive!” emanating from our home offices – the legal community will survive.