Fresh Covid-related Risk Updates — Protecting Privilege Risk + Commentary from The Law Society

Restatement to the Rescue: 20-Year-Old Treatise May Help Ease Work-at-Home Privilege Problems” —

  • “Since so many lawyers and clients are now communicating with each other from their homes, the COVID-19 pandemic presents such a time with respect to the protection of attorney-client privilege.”
  • “For lawyers who have long since set themselves up to operate on a “virtual” basis and for clients who have developed sophisticated systems for assuring confidentiality, there may be no change. But what about the rest of us who now find ourselves or our clients communicating while regularly surrounded not only by household pets but also by children, relatives, and spouses or partners – with little or no guarantee of “private” space or time? This is where the 20-year-old §71 of the Restatement of the Law (Third), The Law Governing Lawyers (2000) can provide some helpful advice.”
  • “It is known that a reasonable expectation of confidentiality at the time of a communication between attorney and client must exist before a communication can be potentially considered for privilege protection.”
  • “Translated to the age of COVID-19, this can fairly be taken to mean that neither lawyers nor their clients can immediately be expected to go as far in protecting the confidentiality of their client communications from home as they used to do from the office.”
  • “Nonetheless, two limitations must be noted. One is that steps that can reasonably be taken now… The other is that the duties that lawyers have to protect communications on their end and to advise clients about risks to confidentiality on the client end may well grow if and when it appears that lawyers and clients will remain working from home for a prolonged period of time.”

The Law Society: “Coronavirus (COVID-19) advice and updates” —

  • “In response to questions from our members, our latest advice for firms is below.This information will be updated regularly to reflect the most recent guidance.”
  • “Are solicitors key workers? Only legal practitioners who work on the types of matters, cases and hearings listed above can be classified as key workers:
    • advocates (including solicitor advocates) required to appear before a court or tribunal (remotely or in person), including prosecutors
      other legal practitioners required to support the administration of justice including duty solicitors (police station and court) and barristers,
    • solicitors, legal executives, paralegals and others who work on imminent or ongoing court or tribunal hearings
    • solicitors acting in connection with the execution of wills
    • solicitors and barristers advising people living in institutions or deprived of their liberty”
  • “What are a solicitor’s professional obligations if they are unable to provide the services required, due to coronavirus? You should notify the client as soon as practical that due to coronavirus issues the service cannot be provided, and suggest that they try another solicitor (perhaps giving a list of three alternatives or a link to the Law Society’s Find a Solicitor service).”
  • “What should I do if I have court deadlines coming up? A new Practice Direction under the Civil Procedure Rules seeks to address the issue of extensions of time. Practice Direction 51ZA, effective from 2 April 2020, makes provision for parties to agree extensions of time to comply with procedural time limits in the Civil Procedure Rules, Practice Directions and court orders. Parties can agree an extension up to 56 days without formally notifying the court (rather than the previous 28 days) so long as that does not put a hearing date at risk. Any extension of more than 56 days needs to be agreed by the court. It provides guidance to the court when considering applications for extensions of time and adjournments. This Practice Direction ceases to have effect on 30 October 2020.”
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