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Social distancing in the legal profession – should it stay or go?

Social distancing in the legal profession – should it stay or go?

Published on June 14, 2022 by Hanaan Indari and Dilan KasturiHanaan Indari and Dilan Kasturi

For better or worse the COVID-19 Pandemic has changed our everyday lives including for the legal profession and how we practise the law today.

The introduction of COVID-19 measures including, social distancing, isolation & quarantine, physical distancing and border closures, required the legal profession to quickly adapt to the new environment of the pandemic.

Like other sectors, the shift has been largely towards the incorporation of technology into how law firms, lawyers, barristers and courts work together and continue to deliver their services to clients and the public at large.

Whilst this shift has presented its challenges, for the most part there has been quite a seamless transition to the introduction of working from home, video-conferencing and online court systems. It is true to say that these pandemic measures have changed the face of how the law is now practised day-to-day.

In a profession which centres on communication, whether it is advocating for a client in court, strategy discussions between legal practitioners and clients, or even between legal practitioners themselves; in this new digitally focused arena, are legal practitioners missing out on a level of advocacy, congeniality and working togetherness that can only be achieved face-to-face?

So, as many workplaces return to the office, should these changes initiated by the pandemic stay or go?

Online courts

To ensure uninterrupted access to justice during the pandemic, courts, commissions and tribunals facilitated virtual appearances and hearings and expanded online registries and dispute resolution systems, to name but a few.

Some benefits of online courts might include a more streamlined case management process and greater access to justice for people who live in remote areas who no longer need to travel. There are also time and cost saving implications for parties who no longer need to travel and the courts who no longer need to cater for in-person appearances. [1]

Issues with the shift to online courts include the requirement for members of the public to have access to technology which is a barrier for those with a lack of resources or living in areas with poor internet connection. There are also the familiar technical issues including connection stability, audio quality and problems with devices. [2]

However, perhaps the main issue experienced by the legal profession is the dehumanisation of what has for decades been a human centric process, centring on fluid discussions and advocacy by engaging with other parties and decision makers through building rapport, facial expressions, body language and human insight and empathy.

At the Australian Bar Association Conference in April this year, High Court Judge Patrick Keane called on the legal profession to take a step back from taking courts completely online. His fear was a loss of congeniality and working togetherness.

 Justice Kearne said:

 those ‘‘who aren’t sympathetic to our view are the people in finance departments of governments throughout the country.’’ [3]

 ‘‘They are not sympathetic to the kind of considerations we’re talking about. They see the possibility of reducing costs by having proceedings online.” [4]

Federal Court Judge, John Middleton was of a similar opinion:

“They see it as just saving costs for the client, and the greater picture is not seen. That is a debate that’s going to be had, and we’ll see what happens.’’ [5]

Justice Middleton said that there should be a presumption that all matters are heard in person:

 ‘‘We can use the technology, even with the presumption I am working on, and make it efficient. We are not throwing out what we have learnt.[6]

Video conferencing

An integral component of getting a client’s case ready for a hearing (or rather now an online hearing) is the mountains of preparation that legal professionals are required to undertake. This begins at the initial consultation between a lawyer and a client and progresses to numerous conferences between clients, lawyers and barristers to best strategise the further preparations and evidence which need to be obtained to prove the client’s claim.

The pandemic has seen the shift of these once in person conferences to video conferencing platforms such as Zoom and Skype, which again may have proven to be a more time and cost-effective method. [7]

What it has also meant is that clients do not have the benefit of as many face-to-face interactions with their legal representatives. We know that it is crucial clients feel supported when they are seeking legal advice, and it is important that they make the right decision when it comes to which legal representatives they choose. In a process with fewer direct interactions, the question need to be asked whether  clients are  feeling less supported by their legal representatives?

For legal practitioners remote conferencing has taken away the ability for practitioners and clients to work together in person. The ability to be physically in the same room together and literally stand beside clients to strategise, empathise, and share in their shared goals, wins and losses,  has mostly been removed.

Working from home

The pandemic forced law firms to make immediate changes to their working from home arrangements as a part of the need to respond to government directives. The new normal for most firms is for all employees to have flexible working arrangements where staff are alternating between working in the office or from home throughout their work week.

As we all know there are benefits to working at home, and especially for those who have lengthy commutes to the office. For some people it can add hours to their day which can be dedicated to work, socialising or the chores we all have.

What is less discussed and especially true in the area of law is the benefit of staff being in the office to bounce ideas off of each other and collaborate on laws and cases. For more junior lawyers, the ability to walk into a senior staff members office, knock on the door and seek advice has become less readily available when staff are working from home. [8]

In more recent times, there has been ‘encouragement’ from law firms for staff to return to the office at least two days per week as COVID_19 restrictions have been released. [9]

In an unprecedented time, law firms will continue to do what they judge is best for their employees, clients and society at large, and flexible working arrangements will likely be here to stay as the pandemic continues.

 


[1] The Law Society of NSW, 2022. A Fair Post-COVID Justice System: Canvassing Member Views. [online] Sydney, pp.3-4. Available at: <https://www.lawsociety.com.au/sites/default/files/2022-02/21051%20Post-COVID%20Justice%20System%20Summary%20Report%20FINAL%20220124.pdf>.

[2] Ibid.

[3] Australian Financial Review. (2022). High Court judge urges fight against online justice. [online] Available at: https://www.afr.com/politics/federal/high-court-judge-urges-fight-against-online-justice-20220503-p5ai8c [Accessed 23 May 2022].

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] The Law Society of NSW, 2022. A Fair Post-COVID Justice System: Canvassing Member Views. [online] Sydney, pp.8-9. Available at: <https://www.lawsociety.com.au/sites/default/files/2022-02/21051%20Post-COVID%20Justice%20System%20Summary%20Report%20FINAL%20220124.pdf>.

[8] The Law Society of NSW, 2022. A Fair Post-COVID Justice System: Canvassing Member Views. [online] Sydney, pp.10. Available at: <https://www.lawsociety.com.au/sites/default/files/2022-02/21051%20Post-COVID%20Justice%20System%20Summary%20Report%20FINAL%20220124.pdf>.

[9] Australian Financial Review. (2022). No pressure: law firms only ‘encourage’ return to office. [online] Available at: https://www.afr.com/companies/professional-services/no-pressure-law-firms-only-encourage-return-to-office-20220224-p59z7m [Accessed 23 May 2022].

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