The American Bar Association Standing Committee on Ethics and Professional Responsibility has released a formal opinion cataloguing the relevant model rules and technological considerations that lawyers should be aware of when practising virtually. The opinion (Formal Opinion 498) identifies some of the minimum requirements for virtual practice under the ABA Model Rules of Professional Conduct as well as suggesting several best practices to meet ethical obligations in a virtual setting.
The opinion states that “When practising virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology,” the opinion said. “In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information.” Noting that the “duty of supervision” requires lawyers who supervise others to “make reasonable efforts to ensure” that their direct reports comply with the model rules, particularly if these colleagues are still working virtually.
The best practices cover hardware devices and software systems; accessing client files and data; using virtual meeting platforms and videoconferencing; and virtual document and data exchange platforms, among others.
Read the full opinion here.
During the Canadian Bar Association (CBA) AGM, held on the 18th February 2021, the CBA released its new report on COVID-19 and the justice system ‘No Turning Back’. The report, which was produced by a special task force, has concluded that there can be no return to the way things worked in the legal profession and the justice systems before the pandemic.
The report suggests that the pandemic has brought changes to the Canadian legal profession which have been long-awaited. The report includes a number of recommendations, to the CBA, around continuing and building on these changes in order to create a more innovative and effective justice system, which the population can have confidence in. Its recommendations include:
- Collaborate with domestic and international justice system partners on best practices
- Ensure that changes enhance access to justice instead of detracting from it by minimizing unintended consequences, including breaches of privacy
- Consider the impact on marginalized groups of implementing AI and other emerging technologies
The task force, established in April, 2020, brought together CBA members and justice system partners from across the country to assess the immediate and evolving issues for the delivery of legal services resulting from the COVID-19 pandemic.
CBA President, and task force Co-Chair, Brad Regehr has said “The pandemic kick-started a modernization of the way the legal profession and the justice system provide services – something the CBA has been advocating for a long time. We now need to make sure these changes are sustainable and that they are properly implemented to enhance access to justice. ”
Read the full report here.
A syllabus is a contract, an introduction, a statement of values, a todo list, a plan. It is often the point of first contact between professor and student, or between student and an area of law. Beyond the technological challenges, for many professors Fall 2020 was also the first-time coming up with a camera policy or amending attendance expectations to consider a pandemic. For some, this is also the first time explicitly engaging in antiracist pedagogy in the classroom or considering practices like trauma informed teaching. This essay offers a practical, “nuts and bolts” walkthrough of promising practices for each part of the syllabus while also touching on complex pedagogical questions such as issues of accessibility, setting a cooperative tone for class, and preparing students for sometimes challenging discussions. This essay is not only about the transition to online teaching, but more broadly about shifts within legal education that only promise to become more relevant. The essay is a practical and helpful guide for those planning future semesters, even in a post-pandemic world.
Schendel, Sarah, The Pandemic Syllabus (October 27, 2020). Denver Law Review Forum (Forthcoming 2020), Available at SSRN: https://ssrn.com/abstract=3720131
The Philippines Supreme Court has released updated rules that allow video conferencing software to be used for the notarization of documents in areas under quarantine due to public health concerns. The authorisation is contained in A.M. No. 20-07-04-SC, otherwise known as the 2020 Interim Rules on Remote Notarization of Paper Documents.
The Rules shall be limited to the notarization of paper documents and instruments with handwritten signatures or marks through the use of videoconferencing facilities. However, they shall not apply to the execution of notarial wills.
Read more about the changes or view the updated rules.
In April/May 2020 the Law Society of Scotland undertook a telephone survey with private practice firms to understand the financial impact the Covid-19 outbreak and subsequent restrictions were having on the sector. 90% of firms surveyed reported a downturn in new business, with the majority also reporting reduced turnover and cashflow.
Read analysis of the survey (PDF).
Subsequently, the Law Society of Scotland ran a similar version of the survey with Heads of Legal Services/General Counsel in the in-house sector and also conducted an online survey with the wider in-house legal community.
Read the preliminary analysis of the in-house Heads of Legal survey results. (PDF)
Read the analysis of the online survey of in-house practitioners. (PDF)
The Law Society has also announced the creation of a new working group for COP26 (26th UN Climate Change Conference of the Parties (COP26) to be held in Glasgow from 1- 21 November 2021). The UK is hosting the main event with Italy hosting the preliminary meetings. COP26 is described as the largest summit ever to be held by the UK. The Group is exploring and considering how the Society can best promote and support the members’ interests in COP26 and with the wider climate change agenda.
Find out more.
The Law Society of Saskatchewan has released a new episode of its Legal Skies podcast, outlining the ongoing changes to legal education in Canada, as well as the impact that the COVID-19 pandemic has had and will have on education and training. The podcast features Dr. Kara Mitchelmore of the Canadian Centre for Professional Legal Education (CPLED), and features discussion about the new practice readiness education programme, as well as ongoing issues around remote learning and assessment.
Listen to the podcast.
The Candian Bar Association has launched a survey to gather information about the impact of the COVID-19 pandemic on young lawyers and students. Anecdotal evidence gathered by the association has suggested that early-career lawyers have been disproportionately adversely affected by the pandemic, finding it difficult to get work experience, find first jobs or articling positions. Many have also raised the issue that they are losing access to valuable learning opportunities through remote working.
The survey has been set up to gather further data around the issue, to allow the association to begin to address the issue.
View the Bar associations comments about the survey.
The Covid-19 crisis in 2020 severely impacted the corporate and in turn, the financial sectors of the UK, entailing responses from financial regulators to implement unprecedented regulatory suspensions that affect both the financial sector and the real economy. We argue that regulatory suspensions are a unique crisis management tool and give rise to certain concerns and implications. We offer two case studies in regulatory suspension that show how inherently flexible laws and regulations became an anchor for unexpected suspensions or adjustments in other regulatory provisions and laws. These create implications for rebalancing of regulatory objectives and distributive effects and also for incentivizing certain behaviours amongst affected constituents. These institutional implications may be temporary or have a longer-term effect, and we argue that there is a need for a robust and rational regulatory decision-making framework in relation to regulatory suspensions, as part of crisis management. We sketch the contours of such a framework which includes rational balancing of the cost and benefits of regulatory objective trade-offs, distributive effects and institutional implications. We advocate a broad and deep ‘humanizing’ approach to balancing cost and benefit in regulatory suspensions, drawing upon Sunstein’s work. We also advocate a coordinated and inclusive procedural approach to crisis management, including regulatory suspension decisions, that would enhance regulators’ preparedness and intuitive skill in this area.
Chiu, Iris H-Y and Kokkinis, Andreas and Miglionico, Andrea, Regulatory Suspensions in Times of Crisis: The Challenges of Covid-19 and Thoughts for the Future (May 19, 2020). European Corporate Governance Institute – Law Working Paper No. 517/2020.
Available from the SSRN site.
In light of the ongoing uncertainty and the potential for change in how court hearings may be undertaken in the future, the Law Society of Hong Kong has lobbied for assistance to be provided to practitioners who may not have access to the technological tools required to conduct remote hearings or transactions.
On 8 April, the Government announced the proposed establishment of a LAWTECH Fund (“LTF”). On 18 April, the Finance Committee of the Legislative Council approved reserving HK$35 million for the LTF to assist law firms and barristers’ chambers with five or fewer practising lawyers to procure or upgrade their information technology systems and arrange relevant lawtech training for their staff.
See the full information on the fund.
Read more about the webinars.
The International Bar Association (IBA) has launched a global survey to look at the impact of the COVID-19 crisis on members’ interests.
The survey will collect information on:
- the impact of Covid-19 on bar associations’ and law societies’ day-to-day operations, finances and staff;
- the impact measures taken to tackle the virus have had on local justice systems, court proceedings, key work undertaken by lawyers and legal representation for prisoners; and
- members’ COVID-19-related activity in the wider community, including access to justice initiatives, undertaken, and pro bono work.
IBA BIC Chair Péter Köves and Vice Chair Kimitoshi Yabuki have said that the survey will provide: “a snapshot of how Covid-19 has affected our members, including the impact on their operations, finances and administration of justice in their jurisdictions more broadly. This information will in turn allow us to coordinate our longer-term responses to the crisis more effectively and better understand the help you need both now and in the future.”
More details on the IBA survey.
Access and complete the IBA survey.