Keep your lawyer close: how Covid-19 is changing the rules
In the fourth of a five-part series on the long-term impacts of the pandemic, Krupa Solanki of UnWork looks at the emerging effects of Covid-19 on the legal profession and legal processes
In our earlier articles on the long-term impact of the pandemic, we examined shifts in technology, the changing nature of work itself and the effects on the physical office. This fourth article in the series explores the implications of Covid-19 for law makers and law making.
At its heart, the law is about relationships – navigating and regulating them as well and remedying those that have gone wrong. In so many ways coronavirus has been defined by relationships; those it has indelibly shattered as well as the relationships that changed in the light of its emergence. One such relationship has been that between the state and its citizens, which has also triggered various micro-tremors in other relationships, especially those that govern life, death, work and everything in between.
State authorities in the US and national governments in Europe have expressed some degree of discomfort about imposing stringent measures regarding socialising, working and leaving the house. In some places, frustration with these measures has encouraged citizens to rebel and seek to revert to the old frameworks governing relationships. Yet, this pandemic remains unrivalled in its destruction. Its emergence has propelled a thorough reimagining of civil society and the rules that govern its relationships.
The shape of the storm?
While many of us remain in the calm of the stay-home measures, it is yet to be known what the storm looks like on the other end. For the legal industry – both the professionals within and the practice itself – it appears that change is coming, and it will be swift and unrelenting. In the sense that governments have been able to mobilise statutes and regulatory authorities to enact and enforce laws related to public health and coronavirus, the transformation has already begun.
On an industry-wide level, the digitisation of law continues apace, not just in digitisation of legal processes but in the sense that most of the UK legal workforce are now working virtually. The disruption for the sector has been well documented with many juniors highlighting their mixed experiences of virtual legal training. However, the case stands that for a sector defined by its notoriously hierarchical and traditional leanings, this has been a swift leap into modernity.
Yet, for all talk of change, there are processes and needs which constantly drive lawyers back to offices – a heavy storage and paper-based culture as well as compliance has meant that lawyers have traditionally required dedicated spaces to work; the corollary being that more experienced you get, the bigger and better such a space should become. This has been part of legal culture for centuries and coronavirus looks set, in its airborne mischief, to undo it all.
Lessons as law offices reopen
Early indications from legal offices opening in Milan tell us two things: first, legal offices were some of the first traditional workspaces to reopen (a fact from which we can derive a number of inferences regarding the inherent nature and practice of law); second, the initial missives from these experiences of re-opening detail a world far removed from the one left behind, and one that is expectedly more isolated and insular.
Whatever questions surround the debate between legal practice and the need for dedicated workspaces, a simple fact endures: the law – not unlike the medical profession – does not sleep. As a key organ of state, and one which has become increasingly important given the nature of this pandemic, the show – as they say – must go on. As time has progressed and various incarnations of the virus have passed, it has become clear that technology is both a holy grail and a curse for the law.
‘Technology is both a holy grail and a curse for the law …’
As Forbes recently reported, coronavirus has ‘turbocharged the legal industries’ technological transformation’ and this has primarily been a good thing. For many legal professionals, the emergence of coronavirus has been regarded as a key opportunity to ‘catch up’ technologically and introduce a new workforce to the joys of online collaboration, empowering them to access tools that they may never have used before.
Accordingly, legal practices which have more direct effects on the lives of citizens have moved online in most part of the world, enhanced and enabled by technology. Take for example the swift statute passed by Australian government – The Electronic Transactions Amendment (Covid-19 Witnessing of Documents) Regulation 2020 which came into effect on 22 April 2020 permitting the witnessing of wills through remote access tools such as Zoom and Skype. Legal proceedings have also been taken online with virtual courts delivering justice across secure online platforms. Of course, this particularly crucial form of working from home has not been without its gaffes, as perfectly demonstrated by this overheard toilet flush during proceedings at the highest court in the US land.
Law and tech uneasy bedfellows
Away from the profession itself, technology has demonstrated a wider part to play in how the law may change in the coming few months and years. In truth, law and technology have long made for uneasy bedfellows; where the former is embodied by tradition, history and lessons learned, the latter is driven by an eternal quest for innovation and the dogma ‘move fast, break things’. And technology has indeed continued apace with the law struggling to keep up and create robust regulatory frameworks to check the growing power of big tech.
With the onset of coronavirus, many countries have identified the power of technology as a potential route for mitigating risk. From facial recognition and biometrics to the creation of applications which can contact trace and inform users of risks and potential infection, technologies that were once seen as intrusive in Europe, like collecting location and health data, have now become integral to governmental plans to contain the virus.
For the first time in known history, rival technology companies Apple and Google announced a temporary partnership to develop contact tracing technologies and ‘work together to solve one of the world’s most pressing problems’. But for all the tech camaraderie and potential benefits of these innovations, there is also a keen desire to understand how these innovations may sit contrary to privacy legislation and individual citizens’ rights. Privacy law rights (enshrined under Article 8 of ECHR and the infamous GDPR in Europe; and 1st, 4th and 5th Amendments and miscellaneous state laws in the USA), are qualified rights, not absolute, meaning that any potential measure will need to be tempered against the standard that the measure is in accordance with the law, proportionate and necessary.
Public health versus data privacy
By way of further complication, these laws are also rendered obsolete when ‘national security’ (under which public health is likely to fall) is invoked. The question here is fundamentally one of proportionality. In a delicate act, those in power must balance the utility of data which can prove essential at various stages of a public health emergency and assist in feeding valuable intelligence for enforcement with the fact that it can also be used mischievously in a variety of ways, not least in the distribution of private information on users to interested parties (commercial and otherwise). Given all that is happening globally with coronavirus, there is little doubt that governments will be permitted to utilise such technologies in the name of public safety. The idea that there may be a price worth paying for freedom has never been so relevant.
Creating and deploying the technology does not solve the problem entirely. The success of these technologies depends on user uptake which is often driven by the value proposition demonstrated by technology. Touch ID on Apple and Android phones have been successful because of the ease of access and efficiency provided for phone-based tasks. Similarly, research shows that users have been less concerned with divulging private data where results and ‘pay-offs’ are immediate and fuss-free; take for example the success of the Fitbit.
The value proposition of a Covid-19 app, on first blush, appears to be the rather compelling reason that it may save your life and others by highlighting and tracing people you encounter. Yet despite this alluring reasoning, in countries where such an app has been deployed, it has failed to reach the desired numbers to ensure best practice and stable results. This is especially true where the technology deployed has been voluntary, user-consent based (Singapore, Australia).
The question of whether any such technologies will be mandatorily imposed on the populations of the global north has not yet been discussed, but if it were to happen it would have huge implications – legally, politically, and culturally. Given the potential pitfalls and lack of success, it is little wonder that some countries, such as France and Belgium, have opted against using any technological contact tracing and will instead rely on manual contact tracing.
Impact on employers
Beyond managing a citizen’s relationship with technology, the law may also be required to step in to relationships between citizens, notably employees and employers. In the first instance, governments may set down regulations that employers must follow. For example, given that this disease spreads in density, it may be that the governments mandate certain restrictions on minimum square footage/density levels in offices.
Similarly, they could proclaim certain hygiene standards which must be independently inspected, not dissimilar to bars and restaurants. In the event these are flouted, it would be that employers could face double litigation; once from the state for contravention of the rules; then again from the employee for dereliction of duty.
In the second instance, the employer-employee relationship will necessitate some serious restructuring. Given the health and safety concerns of returning to any office, employers may find themselves under a special obligation to safeguard their employees. And this process is fraught with potential litigation – from selecting who goes back to the office first to the layout of the space itself, workplace decision-makers must balance the desire to get back ‘to normal’ with anti-discriminatory policies. In other words, a rush to satisfy the former must not lead to a wave of the latter.
‘Classifying employees by age, ability or race is a recipe for legal liability…’
Classifying employees by age, ability or race has traditionally been a recipe for legal liability for employers and it looks set to become more problematic still. Take, for example, a suggestion that organisations may instigate a blanket ban of over 50s in the workplace, this is highly likely to contravene anti age-discrimination litigation.
By contrast, should a company compel an employee back to work without taking into consideration their personal circumstances, they may well be asking for litigation there too. To put it simply, we just do not know but with the elimination of employment tribunal fees (in the UK) as of 2018, employees have little to lose in seeking to teach their employer a potentially very expensive lesson.
Litigation anchored off the virus
In truth, the litigation anchored off Covid-19 has already begun. For example, in California, a class action suit again Vi-Jon has already taken root; here consumers allege that ‘they falsely advertised, marketed, and sold its Germ-X brand hand sanitizers as being able to prevent viruses, including Covid-19’. Over in Europe, in France, ‘600 doctors calling themselves the C19 Collective have brought a criminal case accusing the French prime minister and former health minister of failing to adequately prepare for the epidemic’.
In a period marked by turbulence; people are bound to make mistakes. These could prove incredibly costly. As lawyers gear up for a potential wave of pandemic litigation, the collateral impact on wider society and the economy remains uncertain. Writing in the UK’s Daily Telegraph, Matthew Lynn suggests that ‘Business should be inoculated against lawyers if they are to return to work’; he argues that ‘the real threat is this: lawyers, health and safety officials and the trade unions…we have created a lawyer-dominated health and safety obsessed culture that may turn into our biggest enemy as we recover from Covid-19.’
Lynn goes on to state that the employers may be subjected to ‘potentially ruinous legal claims, fines for breaching safety rules, and unions itching to blow the whistle on managers who are simply trying to do their job in incredibly difficult circumstances…What if staff desks are not arranged the right way to protect people from infectious sneezes? Will the employer get hauled before a tribunal?’ As a counter-argument, FT journalist and author Gillian Tett argues that ‘private lawsuits are a vital tool for upholding standards in the free market system’.
‘Keep your friends close, but your lawyer closer…’
This period has demonstrated the clear complexity of both the law and the Covid-19 virus. The two merged together make for an even more elaborate situation. Where technology has been beneficial for the legal profession and the practice of law, it also brings with it a potential storm around data privacy. Warren Buffet famously noted that ‘once the tide goes out, you can see who has been swimming naked’. Once the tide associated with coronavirus begins to recede, only then can we fully comprehend the effects of this cruel illness on our relationships that are regulated and remedied by the law. As the changes emerge, it appears to be a case of keep your friends close, but your lawyer closer.