It is time for the SRA to issue a virtual practice handbook

The Law Gazette

30 March 2021

I assume that nearly every person reading this is working remotely at the moment. And I also assume that remote working will be with us indefinitely, given the nature of technology and the changes which have been wrought to our lives.

But the phrase ‘remote working’ assumes that there is a bricks-and-mortar law firm somewhere. Virtual practice is a more comprehensive phrase.

Jonathan Goldsmith

I have looked at the SRA’s advice on virtual practice, and in particular compared it to the recent formal opinion issued on the same subject by the American Bar Association (ABA).
To begin with, an interesting feature of the SRA’s approach was mentioned in the practice note that the Law Society issued during the pandemic, called Using lawtech in your practice. It noted that:
‘SRA regulation is based on responsive and responsible conduct, and not on the tools firms use to achieve them. The principles of the SRA Standard and Regulations apply to your provision of legal services in general and do not distinguish between conventional legal services and services provided using lawtech products or services.’

Despite this, the SRA has produced a lot of excellent advice focused specifically on virtual practice during the pandemic. My complaint is that, first, it is tied to the pandemic (you find it under the heading of coronavirus), and, second, it is not all in one place.

Regarding the first point of it being tied to the pandemic, the fact that the SRA had to break its own convention and issue specific advice aimed at virtual practice during the pandemic shows that such practice has special features. Of course, we all hope that coronavirus restrictions will be lifted during this year. But virtual practice will continue. Indeed, it has already been with us for decades, but will doubtless grow in extent. At some stage, the SRA has to shift its current advice from the coronavirus section to one devoted to virtual practice. I suggest that time is now.

On the second point of the advice not being all in one place, the example of the guidance on confidentiality is instructive: it is split between the coronavirus page and the cybersecurity pages. It should be gathered together, as the ABA has now done in its formal opinion.

There are other issues. For instance, I have no doubt that somewhere in the SRA’s standards and regulations there are provisions to cover these two of the ABA’s useful pieces of advice, but if they exist outside the generality of provisions on confidentiality and cybersecurity, I have not found them:
‘Unless the technology is assisting the lawyer’s law practice, the lawyer should disable the listening capability of devices or services such as smart speakers, virtual assistants, and other listening-enabled devices while communicating about client matters.’ In other words, Alexa and Siri have to be told to put their fingers in their ears during the communication (well, good luck with that).

And the next one is:
‘When connecting over Wi-Fi, lawyers … should consider using virtual private networks (VPNs)’.
Further, much of the ABA’s advice is about knowing the exact terms and conditions of the hardware and software that you use as a lawyer, for instance regarding retrieval of data, which is itself tied in to something I often mention, which cannot be found specifically in our own rules, although as ever it can doubtless be attributed to somewhere in their generality:
‘To maintain the requisite knowledge and skill [to be competent], a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology’ (Comment [8] to ABA Model Rule 1.1).

There is also a useful section on the need for regular interaction and communication with associates, legal assistants, and paralegals, including to discern the health and wellness of the lawyer’s team members.
Finally, the ABA advice covers possible limitations in virtual practice. These turn out to be precious few, like: ensuring that paper mail is processed; directing clients and others about how to contact the lawyer; and obviously being able to file and receive court documents which do not fall under e-filing.

A specific handbook on virtual practice would concentrate minds on what differences exist between virtual and bricks-and-mortar practice. It will in due course become a nonsense to pretend that general principles developed for a bricks-and-mortar world are still good for virtual practice. There are developments which are specific to virtual practice, or have to be stretched to fit it, which solicitors will otherwise overlook. The advice about disabling Alexa and Siri, and enquiring about the health and wellness of team members (which is more obvious in an office setting) are examples.

Assuming physical and virtual practice are the same is not helping us in the long run.

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