David Green, co-founder of The Strategic Partner, and preferred risk management consultant of Paragon, spends a significant amount of time assisting law firms with strategic development and has shared the following white paper highlighting some recent concerns and how to manage them.
With law firms working remotely during the Covid 19 pandemic, remote working is no longer a new way of working with many, if not most firms, now set up for this. For some, it has been an innovative and positive experience, but for others, they cannot wait to get back to working in an office as they miss the social aspect of a workplace and the structure this can bring to the working day.
There is no doubt that the industry is split on whether long-term remote working is sustainable personally and professionally. Still, one thing that is for sure, large sections of the industry will be changed forever with a mix of remote and office working.
Firms that had been reluctant to have employees working from home now realise they can trust employees to get their work done. They have come to realise that employees have adjusted well to the new working environment. This has allowed some firms to review their office space requirements and consider downsizing their offices, with the welcome costs savings this brings.
The experience has given new light for solicitors and fee earners who have previously not adopted working remotely. For many, they wish to adopt the remote working regime into working life moving forward. For those law firms that will be embracing long-term remote working, they must devise new or updated policies and procedures covering a range of areas to ensure their staff, data and clients are protected, and there is full compliance with the requirements of the regulator.
The Detail and Guidance
There are several elements that a firm should think about, and below we list and discuss some of these areas which we hope provides useful guidance:
- GDPR and confidentiality
Firms must have procedures and policies in place to protect the confidentiality of the client’s data. This could include employees mostly working paperless and firms insisting that employees should lock screens when away from their PC/laptops. Further, firms could ensure employees store files away safely at home when not being used and proper records maintained by the firm for file/data removal and return by way of a register.
It is the firm’s responsibility to assess the environment of the individual or suitability and provide the necessary equipment to work remotely, whether that is PC equipment or office furniture.
Firms that have not provided PC equipment to their staff, allowing individuals to work from their own PC’s and laptops, are putting client data at risk, particularly where multiple people in the household use the PC. Whilst a firm may well provide secure access into the firm’s systems for convenience, many systems will automatically log in, which poses a risk. A firm cannot very well ask a member of staff to disable local saving on their own PC, which means that the moment data is saved locally, the firm is no longer in control of that client’s data.
Protection and management of a firm’s and client’s data have to be at the forefront of a firm’s remote working considerations. Whilst most firms have enabled staff to have some remote working capabilities by allowing emails to sit on personal devices, this has been controllable as data can be deleted remotely or access denied. This is not the same for information and files stored remotely.
A firm cannot put the same levels of control around physical data and equipment as they would in the office, but the obligation to protect this does not change, and the loss of data is certainly reportable to the client. A serious data breach is reportable to the SRA, as would be a breach of confidentiality.
Suppose a firm adopts remote working and shifts theirs and their client’s data to multiple locations. In that case, they must have firm policies in place alongside training and monitoring to ensure these policies are being adhered to, or they put their firm and their clients at risk.
- Daily guidance and Supervision
Next on the list has to be the supervision of staff which covers a whole range of areas to include but not limited to: –
- Performance management
- Risk Assessment
- Compliance and monitoring
- Formal training
- Informal training
- Case guidance
- Knowledge sharing
- Case allocation (see below)
- General advice (see below)
- Inclusion (see below)
- Auditing (see below)
- Use of system
- Access to support
- Communication methods
There is a lot for firms to consider. A remote working policy needs to consider each of the above areas that occur more naturally in an office environment but are unnatural and do not lend themselves to remote working.
Open lines of communication are essential for successful remote working. It has to be remembered that communication is two-way, and not everyone is an effective communicator. Still, to sustain long term remote working and inclusion, they have to be, and for those whom it does not come naturally, they need a structure.
Employees must be supervised – SRA Code of Conduct for Firms – Codes 2 and 4 set out the requirements for firms. Failure to develop robust policies and then document and evidence supervision could expose the firm to criticism from the regulator.
- Regular contact and communication with the office
With the fundamentals established (confidentiality and supervision), a firm is then ready to allow long term remote working and with that comes the responsibility to their employees.
The firm should ensure that the employee has regular contact with the office and the supervisor to maintain communication as already detailed. This will involve a range of requirements, such as senior staff reviewing files and matters and having meetings and discussions regarding case management.u
Firms can ensure effective demonstration of the supervision of files and fee earners through a register showing that adequate supervision is provided at all levels and maintaining and keeping up to date the individuals training record.
Importantly, individuals need to be included. It is very easy for an individual or supervisor to overlook or cancel meetings, but this is a failing. It is more essential than ever to ensure regular touchpoints between staff and supervisors occur to air issues or just touch base.
Firms need to look at their overall performance management programme and adjust this for home workers. They also need to consider inclusion and ensure that a schedule of meetings are clear and attendance is compulsory.
It is also recommended that appropriate time in the office is a requirement. This might only need to be a day or two a month, but that engagement should be encouraged if not enforced.
- Health and Safety
Firms have a duty to comply with the Health and Safety Regulations. As soon as you extend someone’s home or home office to the working environment, you need to ensure that the individual is protected and the regulations are complied with.
There are basics to consider, such as the workstation itself. Dining room tables and chairs are not always ergonomic, and firms who allow or knowingly allow employees to work with inappropriate furniture risk potential claims against them.
Wherever possible, firms need to provide equipment or a budget to obtain equipment and ensure it is being used effectively.
The physical elements of health and safety are much easier to cope with and deal with, but the psychological impact is certainly not as easy to see. When you are not working with a colleague day-to-day, it is more difficult to pick up on their mental health. A person walking into the office upset or angry is easy to see; however, person at home behind a PC can become invisible, as can their emotions.
It is not as easy to tell when someone is struggling at home, be that on a personal or professional level, and catching this too late can lead to absence, complaints and negligence. Firms must encourage individuals to speak up when they are having issues, but more importantly, firms need to have systems to identify and manage mental health issues when and if they arise.
- Suitability to work with limited supervision.
Be ready to say no! Remote working is not a right (unless your firm has decided to abandon physical premises). Remote working may not always be possible. The physical environment might be wrong (people in house shares, for example, with no private space), but far and above the other reasons is the ability of the individual and their need for monitoring and supervision.
It is a fact that not every role can be effective remotely, even in a law firm. Every person in a business must add value, as should every role. If remote working deteriorates the person’s impact or the role, then remote working is not appropriate and needs to be refused. In scenarios such as this, the needs of the firm and the role must outweigh the needs of the individual unless a sensible and allowable workaround can be achieved.
An employee should essentially be able to work with limited but necessary supervision. This would mean junior levels of staff who require day-to-day guidance and support with work and tasks would not wholly be able to work remotely unless the firm had procedures and policies in place to ensure adequate supervision was provided and maintained at some level.
This is a tricky topic for some, but firms must remember that they have a duty to develop and supervise their staff. Failure to do so could cause longer-term damage to a person’s career, particularly if errors, or worse, negligence arises.
If remote working does not fit the role or the experience, be prepared to refuse the request.
- Access and presence
Although you and your firm may have moved on and accepted remote working as part of your culture, your clients might not. Your firm has probably been present within your local or business community for some time, and your clients will be used to your presence, ease of access to your office and staff.
Moving some of your staff remotely and potentially changing your office requirements might impact your clients, and you need to ensure that the action you take does not cause a potential loss of business.
This is certainly more relevant for firms looking to leave an area or relocating. Your marketing team may have to work a little harder to maintain client confidence.
Linked to this is, of course, ensuring that your fee earners remain available for meetings. Not everyone is happy to meet via video and prefer a meeting in person. Remote workers need to be alive to this and not try and convince people into a meeting format they are not comfortable with.
- New instructions
It’s important to mention new instructions and how these are processed and monitored. Most law firms will encourage their fee earners to build relationships with clients, which will often lead to direct contact from clients.
Any direct relationship does pose a risk to firms as when in the office, there is more awareness of the work coming into the firm, even when it’s directly between the client and fee earner. However, when a fee earner is at home, the risk of a file coming into the firm that might exceed the individual’s experience or capacity, or that of the firm, increases.
Whilst it might be the case that visibility is provided through a case management system, the detail may be lacking. Firms are well-advised to ensure a robust process is in place, built to capture, process and accept new business to ensure that supervisors can understand the work coming into the firm and approve it.
For many, remote working is a reality. As the successful roll-out of the vaccination programme and the prospect of lockdowns ending becomes more of a reality, firms must start to formalise their future plans so that their staff and clients know what is to be expected.
This comes hand in hand with a review of policies and procedures. Moving forward, firms should have a remote working policy in place to provide detailed guidance for employees. This will ensure that both the employee and the firm know and understand what is expected from each other to avoid ambiguity.
Remote working will be a new way of working moving forward. It should be embraced by firms who are prepared by ensuring that policies and procedures are in place. The ‘hybrid’ way of working can boost productivity in a firm and allow employees to enjoy a good work-life balance.
If you have any further questions in regard to the above, Paragon, The Strategic Partner or the firm’s approach to risk management more generally, please get in touch using the details below
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This article is published without responsibility on the part of the author or publishers for any loss occasioned by any person acting or refraining from action as a result of any views expressed in the article. Specific risk management advice requires detailed knowledge and analysis of firm and practice area facts relating to the risk. The information included in this article cannot and does not attempt to satisfy this requirement for any of its readers