How COVID-19 has changed #auslaw

By Jerome Doraisamy|02 July 2020
auslaw

The Australian legal marketplace will never be the same again once the age of coronavirus has passed. This is, unquestionably, a good outcome.

COVID-19 brought about not just a global pandemic and economic turmoil, but substantial change to the ways the modern legal marketplace operates. These changes are myriad, still unfolding and even yet to emerge. Whilst practitioners have different views about the extent and consequence of such an upending of the established order, one perspective rings true across the board: #auslaw is shaping up to look vastly different to pre-pandemic conditions.

Reflecting on a new-look legal marketplace

Professionals broadly agree that there will not be a full reversion to pre-pandemic conditions. In fact, InfoTrack CEO John Ahern comments, “it will be a shame if it does”.

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“This difficult period has brought about some much-needed change in the legal industry,” says Her Lawyer founder and principal Courtney Bowie.

“We were stuck, in a lot of areas, doing things the way they have always been done, until this pandemic pushed legislators, regulators and law societies to catch up.”

Barrister Jane Needham SC agrees, saying that lockdown underscored the importance of adaptability: “Those who are unable to adapt to changing circumstances have found practising particularly difficult. For those who have the ability (and the equipment) to adapt quickly to changes in technology, that skill will find them in good stead going forward as it is unlikely that the benefits of remote hearings and conferences will be discarded completely,” she opines.

Law firms big and small will have to prioritise wellness concerns more than ever before, HBA Legal managing director Brett Ablong proclaims.

“The stats show that by profession the law has one of the highest rates of people with mental health challenges. This tells me that as a profession, we must do more, employers have to do more, and COVID-19 will force change in this regard because the employers who don’t change will become less and less attractive and find retention increasingly difficult. For a long time, it’s been about much more than just salary when candidates are looking for work. Candidates look at an employer holistically and this is going to become even more prevalent now,” he believes.

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In addition to such potential hostility, there may be changes in how individual legal professionals perceive their vocational worth.

“Lawyers have traditionally been remunerated with two things: money and status. But the modern lawyer – especially a post-pandemic lawyer – wants more than that. Flexibility and true work-life balance are going to be high on the list of wants when lawyers are looking for new rules. [Employers] that can’t offer this will miss out on the hottest talent, says Ms Bowie.

The pandemic has also “supercharged” the digital transformation of law, Herbert Smith Freehills executive partner (Asia and Australia) Andrew Pike submits, saying the speed of change we’ve seen since the pandemic began would have been unthinkable previously.

“We’ve seen firms and in-house teams adopt a host of new tech and digital processes, such as online dispute resolution platforms, electronic execution and smart legal contracts, in only a matter of weeks. We can expect more legal professionals to acquire digital skills – whether that’s simply new proficiency in various tech platforms or the ability to code and build apps,” he says.

“But we need to make sure that this digitisation doesn’t come at the cost of the human element – forming and maintaining strong relationships and learning.
“We are very [focused] on the ‘AND’ – benefiting from the great changes that have occurred recently but maintaining the strength of what has had us thrive over many decades.”

According to Domain general counsel Catriona McGregor, the legal issues affecting businesses will be largely the same post-pandemic, however, she expects that “the delivery of advice will have shifted substantially with significant advancement in the use of technology for delivering advice as the new “norm”.

I expect that many companies will be reviewing their budgets and keeping a close eye on their headcount and cash flow and this may open up more opportunities for some of the lower cost legal providers, particularly those who operate desktop extensions and retainer models”.

A ‘tipping point’ for utilisation of tech

COVID-19 has drawn a line in the sand in which legal professionals and businesses will be forced to “get on the train or get off the tracks” when it comes to upskilling in digital products and platforms, Ms Bowie deduces.

“Clients who might have hesitated have been educated in working virtually across the board (not just when working with their lawyers), so firms will have little excuse not to sign up for legal tech platforms that increase access to justice and meet new client expectations,” she says.

This will likely increase over time, Mr Ablong adds, and at a rapid rate: “There are certain areas of the law where the use of data and tech can really shave off time within the legal process… and time is money for clients.

That will equate to a big win for clients, and therefore a big win for those firms who can embrace tech.”

By definition, NewLaw firms should already have been using digital processes and different forms of technology, Lawpath CEO Dominic Woolrych reflects, with the pandemic serving to accelerate uptake across the broader profession, given how critical they are to remote operations. This can only be a positive outcome, he notes.

“Australia was one of the first countries to legalise [e-signatures], however the take-up has been slow, especially in the legal profession. Due to social distancing rules, lawyers have been forced (for the better) to use electronic signatures to complete transactions. Indeed, Lawpath has seen a 400 per cent increase in its electronic signature feature [since the outbreak of the pandemic],” he says.

Mr Ahern offered similar sentiments, saying there has been a “huge jump” in the use, for example, of InfoTrack’s WebVOI and SignIT platforms, of 260 per cent and 130 per cent respectively.

“This rapid adoption of technology as a substitute for face-to-face shows how keen the legal industry is to maintain business as usual even during challenging times. And very recently, we’ve seen legal regulations adapt to support the industry in this way,” he says.

This increased reliance on legal tech will have flow-on effects in-house, Ms McGregor details, such as giving more “visibility of team matters, team workload and law firm matters. Matter management tools can provide a big picture overview that is otherwise visible from day-to-day interactions in a physically present team environment”.

Mainstreaming of WFH arrangements

Perhaps the most significant professional change to emerge from the pandemic is the advent of remote and flexible working arrangements which, in the “new normal”, will undoubtedly receive greater accommodations from employers industry-wide. It is, as Mr Ablong puts it, a “no-brainer”.

“The pandemic should have proved to the ‘non-believers’ that working from home is no barrier to productivity and in fact increases the sense of wellness employees have. Not all employees will want to work from home, but it should be offered to everyone. Time will tell if some of those firms are jumping on the PR bandwagon because it’s popular, or whether they have genuine intent to change,” he argues.

“Firms will need to recalibrate their view on what value an office environment creates. I believe firms will move to a hybrid [work from home] model with less emphasis placed on ‘face time’ in the office. This will result in the downsizing of offices and increased reliance on performance tracking (value, not time tracking) and other communications tools,” Mr Woolrych says.

As a recipient of such evolving workplace arrangements, McCullough Robertson lawyer and founder of The Legal Forecast Milan Gandhi feels it is “awesome”.

“I feel more relaxed in the mornings not fretting about the commute or that I somehow got toothpaste on my tie. I spend more time with my girlfriend, have kept up with readings and assignments for an online program I’m enrolled in, and can pause working at any time to pet my cat. All of this and I am just as productive at my actual job!” he says.

He will not be alone in such expressions, and as such, it will be much more difficult for employers to successfully refuse WFH requests via an argument that it will reduce productivity or efficiency, Ms Bowie surmises.

“Lawyers have proven that they can work very well virtually – even with the added emotional strain of a pandemic and additional caring duties in many households. I think we’re going to see a lot more employees making such requests and a lot more being granted,” she outlines.

Greater cognisance of such caring responsibilities is fundamental, Ms Needham stresses: “As a practitioner who has been working from home before everyone else was, I hope that the imposition of flexible workplaces will bring with it a greater understanding of its advantages and at the same time a more considered acceptance of the difficulties faced by practitioners working from home, particularly those with children.”

Will new-look court proceedings remain?

In an era of so much professional change, arguably the most traditional element of legal practice – the court proceeding – has demonstrated its capacity not just to roll with the punches, but do so in a timely fashion. Platforms such as Zoom have allowed practitioners and barristers to appear via video for proceedings and documents can be witnessed on a screen – at least for the time being.

“[Tech] paves the way for interim solutions when challenges arise. They can see how tech frees up time and reduces costs,” Mr Ahern reflects.

The courts have proved, Mr Ablong surmised, that change is possible, even for such a longstanding institution, although he feels the courts will be keen to revert to some of the old ways as soon as is practicable.

“There are some instances where remote court proceedings can take longer than they would if all parties were in the same room together. When it comes to the courts, I think there’s a place for both in person and remote proceedings depending on the case, the court, and the parties involved,” he says.

For a silk such as Ms Needham, the “new age” court proceedings can and should remain alongside the traditional face-to-face hearings, to the extent that audio and video features can be effectively refined and utilised by and for courts.

“Before lockdown I was appearing in a court which had difficulties showing a video of a participant who was in custody at the same time as playing video evidence; a month later, the same court ran a hearing with five parties on screen and with only occasional glitches. Clearly, video or telephone courts won’t take the place of more traditional hearings, but I think that there will be more flexibility in accommodating both modes, possibly even in the one hearing,” she reflects.

Mr Pike supports this, saying that while tech has “illuminated” the ways courts can meaningfully work, tech cannot replicate or substitute the inherent benefits of face-to-face interactions: “It is likely that proceedings such as case management hearings could be conducted remotely more frequently, but trials would still be conducted in the usual way. Having said that, there are a couple of large civil trials that are coming up which might challenge our assumptions around the necessity of face-to-face interactions.”

How legal education must react to COVID-19

Law schools around Australia will be well placed to shift the focus of teaching skills, Mr Woolrych posts, arguing that technology lends itself to a post-pandemic marketplace.

“Students are already using many platforms and tools at university that are becoming commonplace within the industry. Online platforms, communication tools, and video software being used to teach classes are also being used within firms,” he outlines.

It is thus clear, Ms Bowie proclaims, that the practical element of legal education will be updated to account for the fact that many new lawyers will be entering a marketplace that it at least partly virtual in the looming “new normal”: “While tone and body language have traditionally been important tools in a lawyer’s arsenal, lawyers in the new normal are going to need to hone their skills for virtual communications,” she says.

There will be a heightened emphasis, Mr Gandhi adds, on “user experience” and designing courses that elicit student engagement due to the need to compensate for what will be lost in increasingly moving classroom teaching and lecturing online.

“Law schools’ primary aim should be to produce socially responsible law graduates who understand the language of law, its societal context, and who are confident at solving legal problems from first principles. This is the way to ensure graduates are valuable and adaptive in the age of automation because, once the ‘black and white’ questions can be answered by technology, junior lawyers will be increasingly relied upon to exercise critical thought and navigate grey areas,” he muses.

The emerging generation should be well placed to adapt to such new ways of working, Ms McGregor believes, given how the broader profession has adapted to continuing legal education over time.

“Law firms were very quick to respond to bring their legal training online, providing sessions through live streams, podcasts, webinars and allowing advance and live questions. This has delivered far greater convenience for in-house counsel and would be great to see this continue,” she says.

Having said that, Ms McGregor doesn’t want to see all learning to move online, either for students or practitioners: “I see a lot of value and very much enjoy coming together in person with other legal professionals and having the opportunity to share experiences. I gain a lot of my professional education from hearing from others in similar roles or going through similar challenges.”

Hurdles facing each demographic of the profession

In each corner of the legal profession, there are challenges taking shape. For corporate counsel, ensuring that the legal department has visibility across the business and is engaged with other departments at necessary intervals will be critical.

“In a more remote working environment, corporate counsel will need to proactively ensure that they are still being looped in on projects and initiatives as they are being developed. This may require more stringent processes for example a formal ‘legal sign-off’ checkpoint where previously there has been a more natural involvement of the legal team,” Ms McGregor says.

Compliance with regulation (should it revert to pre-pandemic conditions) may be problematic for firms, Mr Ahern warns.

“Many regulations that have been eased or changed to make way for legal technology – like remote verification of identity or e-signing have only been done so for a short period. What we may find is that firms may be reticent to change back to how things were when they know how easy and still legitimate these technologies are. But if the regulation reverts, we may see an interesting tug of war between regulators and practitioners,” he muses.

For law firms of all stripes, businesses that drive their perceived value from face-to-face fancy offices, excessive document printing and physical signings will struggle in the new post-pandemic environment, Mr Woolrych suggests.

“Clients have experienced, and now expect meetings, documents and signing to be effectively completed online. From an internal perspective, firms that have poor communication systems between staff will be seriously disadvantaged. With employees at home, software such as Slack, Zoom, Teams, etc. will be critical to keeping information flowing, but also keeping the culture alive within a firm. Firms will need to double down on employee assistance programs so that staff do not feel isolated, anxious or overwhelmed during the pandemic and beyond,” he posits.

Ms Needham worries that barristers will suffer from reduced sociability and companionship that comes from being part of chambers.

“One significant benefit of chambers is the ready-made social and professional support available, which is not as easily accessed when working remotely (one reason why I have always maintained a link with chambers even when having taken extended leave after having children and working part-time from home),” she muses.

A further issue for legal department leaders to contend with, Ms McGregor continues, is likely budgetary constraints: “Most companies will be keeping a very close eye on [cash flow] over the next year or so as a result of the economic impact of COVID-19. General [counsel] will be challenged, more than ever, to deliver sound comprehensive legal advice to the business with the resources that are available to them.”

Mr Gandhi also believes that finance will be a concern, in that those occupying lower rungs on the ladder will feel the brunt of belt-tightening. This, he says, could lead to junior lawyers doing more work for less pay.

“Firstly, I believe that driving change that involves a monetary investment will become more difficult in the short-to-medium-term because of conservatism around cash flow. Secondly, I suspect that junior lawyers may become more vulnerable to overwork because law firms will run leaner teams, and because there will be a justifiable perception on the part of junior lawyers that they are lucky to be employed,” he explains.

Opportunities across the board

Balancing out the issues on the horizon for the profession is the scope for success in a post-pandemic world – assuming lawyers and practices know how to make the most of an evolving landscape.

Ms Needham had been advocating to advance the cause of flexible practice in the law, partly inspired by gender imbalances that arise from traditional environmental structures. Whilst the pandemic has been devastating, it also opens a window for the profession to progress, she says, arguing that practitioners should not race back to the “old normal”, which had inherent disadvantages.

“Instead, we should seek to calibrate the benefits of what we have learned in these last few months and try to incorporate them into our practices in the future. We should not let the courts slip back into requiring personal attendance for every hearing, no matter how small, either. There are real opportunities now that we have all set ourselves up to be more flexible and I would hate that to be lost,” she submits.

An additional reason not to revert as such is the evolution of client behaviour.

“Clients are now far more likely to engage a lawyer or firm based in another state. Clients expect to work with their lawyer online, and therefore have no issues with their location. This has opened up a much larger pool of clients for lawyers that [transact online]. As a result of this, we’re seeing competition increase as lawyers widen their marketing efforts. We believe that firms will need to ‘commoditise or specialise’ to break through and be successful,” Mr Woolrych adds.

Part of the success that lawyers can and will find moving forward, is a transition to sole practice or a boutique firm environment. Talented individuals may feel compelled to step out on their own or be part of a growing business.

“The [BigLaw] firms have shown their true colours during this pandemic, much to the dismay of their employees and lawyers across the country. We’ve observed large scale [lay-offs], broad strokes pay cuts, cursory consultation and a general disregard for the value that people bring to a firm. There is a big opportunity here for boutique firms to pick up some amazing talent who’ve ‘seen the light’ and are keen for a fresh start with a firm that demonstrates their appreciation for their team,” Ms Bowie explains.

For those who remain at the big end of town – and have some capacity to help businesses thrive into the future – there is scope to streak ahead of the competition, Mr Ablong believes.

“It may be unpopular with other law firms to say this, but, the disenchantment of competitors’ employees and their clients is an opportunity for us. COVID-19 has inserted a circuit breaker which means business like ours which [is] flexible and agile, where we put our people and our clients at the centre of every move we make, means that businesses like ours have the potential to leapfrog the competition,” he says.

Mr Pike is of a similar mindset, acknowledging that law firms are not immune to the economic impact of COVID-19 but realising that the “new normal” will also include some ‘old’ practices: “I see one of our challenges as an opportunity, which is how we capitalise on the benefits brought by the recent experience but also maintaining the good from how we have operated previously,” he predicts.

“Not everything is set to be transformed, [but] we cannot miss the opportunity to embed the changes that have worked well, and we intend to use what we’ve learnt from this challenging time to [rethink] the way we work.”

How COVID-19 has changed #auslaw
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