Picture source: Gallo Images/Getty
By Emmie de Kock
Have you ever seen a black swan? Black swans are regarded to be very rare and precious, as swans are generally white. In investments circles, a black swan is used as a metaphor to refer to an unexpected unpredictable event with major financial consequences, whether good or bad. Considering the unpredictability and severe impact of the COVID-19 pandemic, overall, the pandemic has been recognised as a black swan event for most sectors, including legal practices.
The lockdown regulations associated with the pandemic forced most existing law firms to move to a remote platform or at least adopt a hybrid model almost overnight. Many law firms were not prepared for these fast operational changes. Many traditional law firms are still very brick-and-mortar based, paper-heavy and conservative about adopting digital solutions. Considering the moral and statutory obligations on legal practitioners to keep and archive client and employee information confidential and secure, it is understandable. However, law firms who made no permanent positive changes towards joining the fourth industrial revolution during the time of the pandemic, hindered their own progress.
After two years of survival mode for many law firms, and a hopeful close end to the state of disaster, law firm owners are encouraged to take stock and decide which temporary fast changes contributed to growth of their firm and which could be implemented over a long-term period.
Legal practices, which were established during or after lockdown, had an advantage in the sense that they did not face these challenges or resistance to change. Legal practitioners had no choice but to start-up their law firms in the ‘new normal’. Have you considered how law firms that existed before the lockdown period, operate differently from law firms, which were established during or after lockdown? The COVID-19 pandemic created many opportunities and a climate for new legal practices to thrive, if these opportunities were noted and grabbed.
It is not realistic or expected for legal practitioners to also become information technology (IT) experts when operating a legal practice, but a minimum interest and attention to technology should be encouraged to sufficiently engage and serve clients in the times we are living in. Legal services are essential for good order in society and to help avoid or resolve disputes, specifically in the digital realms. Notwithstanding rumours of threats posed by artificial intelligence to take over legal positions, clients will always need legal practitioners to empathise and lead them through a legal crisis.
The purpose of this article is to indicate minimum technology aspects, which every legal practice owner should consider and manage properly post-lockdown.
When legal practitioners decide to rent offices, they take good care considering aspects, such as security, costs, size, accessibility to clients and compliance with the rules from the Legal Practice Act 28 of 2014 (LPA). However, the lockdown period has taught us that your digital address, in particular your e-mail address, is even more important to have in place, as without it written communication and financial transactions can be halted.
There are many options on the Internet to obtain an e-mail address in a fast, free and easy manner. But what does your e-mail address as a legal practitioner communicate to clients and the world?
Many legal practitioners starting up a legal practice using e-mails provided by free and global sources, for example Google (@gmail.com) or Yahoo (@yahoo.com) or Microsoft (@outlook.com). There are serious security and reputational risks for legal practices relying on e-mail addresses hosted by these global giant technology service providers. In accordance with the user terms and conditions governing these generic types of e-mail addresses, these service providers take no responsibility for data leaks and do not comply with Protection of Personal Information Act 4 of 2013 (POPIA), which came into effect on 1 July 2020 with a one year grace period to comply.
Due to the low security guarantees relating to these free e-mail services, these
e-mail addresses are often the target of cybercriminals. The public are often warned, in particular, by reputable financial institutions, against engaging with persons using these types of e-mail addresses, as they are often associated with scammers or amateur businesses.
It is not mandatory or necessary for all legal practices to create or host their own websites in order to get personalised e-mail addresses, as it is not in the budget or management range of all law firms, in particular solo practices. The solutions relating to obtaining professional e-mail addresses for lawyers could be as follow –
Should your firm reconsider or change its e-mail addresses and hosting?
The Code of Conduct for legal practitioners, candidate legal practitioners and juristic entities was published in GenN198 GG42364/29-3-2019 and was made by the Legal Practice Council (LPC) under the authority of s 36(1) of the LPA. Section 7 of the Code which deals with ‘Approaches and publicity’ (ie, marketing) provides for ‘publicity’ in any medium, including electronic and social media.
It has been reported that the use of social media during lockdown increased over 70% of which most time was spent on WhatsApp, Facebook Messenger and Instagram (Ian Haynes ‘COVID-19 – Social media explodes’ (https://www.insil.com.au/, accessed 1-4-2022)). According to www.statista.com, the most popular social media platform in South Africa (SA) is WhatsApp, with almost 23 million users calculated in 2021 in SA.
Many traditional prior-existing law firms often have difficulty adopting electronic or social media marketing strategies. However, it is interesting to note how new law firms, early adopters and Generation Z legal practitioners rely heavily on and embrace social media marketing strategies with success.
Social media, on particular platforms such as Facebook, Instagram and LinkedIn, have become helpful tools to find and make new connections fast, and in an informal way, in particular in times when physical network gatherings were limited. Professional trust is built faster and remotely by being digitally accessible, open, and professional. No social media activities should bring the legal profession into disrepute.
Although these platforms, and some new online platforms for legal practitioners, are helpful for legal practitioners to find, connect and network with each other, opportunities, and freedom to obtain positive exposure by engaging and publicising to prospective and existing clients on electronic and social media should not be missed.
Considering the informal nature of social media, legal practitioners should always bear in mind that their possible audience for social media posts are generally fellow legal practitioners, law students, mentors, existing and future clients. It is in the interest of our profession to keep one another accountable and to help build a positive image of South African legal practitioners online.
Consider if social media should be part of your legal career or law firm’s marketing strategies and how keeping an online presence could help build your professional image as lawyer. Does your firm have a policy in place for members relating to activities on social media?
Cloud services echo the noble reasons why the Internet was originally founded in 1983, namely to protect essential knowledge and academia resources in the event of a physical nuclear disaster. These services aim to offer cost-effective solutions to access, store, back-up, update and share electronic data and files in real-time in a secure digital place accessible from anywhere the Internet can connect.
When hard lockdown hit SA in March 2020, existing law firms which were reliant on in-house servers (and/or back-ups on hard-drives) and/or paper-based records were greatly inconvenienced, disrupted and disadvantaged. Although these record keeping strategies were earlier adopted for physical data security purposes and possible better copyright protection of the firm’s own templates, the pandemic demanded a more flexible approach urgently. The pandemic accelerated the adoption of cloud services in all sectors, including law firms, to adapt to ‘working from home’ (remote working) models, emigration policies and better risk management strategies. Cloud services used by most law firms today relate to practice management, record keeping, case management, billing and/or accounting.
The pandemic also gave the necessary push for the faster implementation of cloud-based platforms offered by government and the judiciary, for example, CaseLines, which was adopted by some courts. CaseLines was already approved for South African courts in 2019 and aims to enrol cases and operate courts without (or less) paper records. According to www.judiciary.com, CaseLines ‘offers Microsoft tier four Azure cloud storage and is ISO270001 accredited’. As it is cloud-based, it ‘can be accessed on any laptop or tablet with Internet access and an Internet browser that is HTML5 compliant’. ‘The system offers a full audit trail of all actions on the system, tracking any changes made to court evidence’.
Considering the delays the pandemic caused in property transactions due to regular and necessary closures of government and Deeds Offices, it is regrettable that the deeds registries failed to switch to a fully digitised system (ie, e-EDR system) during lockdown as contemplated in the Electronic Deeds Registration Systems Act 19 of 2019.
The increase in cloud computing also promoted e-commerce, which had a positive spin for legal practitioners looking to up-skill or study new legal or professional development areas. Legal publishers and training institutions became more cloud-based during the pandemic to make the purchasing books, the use of legal resources and training so much more accessible and affordable. Cloud-resources have become essential for real-time updates as laws were rapidly changing during lockdown alert levels.
How is your law firm taking advantage of cloud services?
In December 2020, the LPC amended the professional Rules by inserting new r 22.1.11, which prohibits the advertisement, interviews, and practical vocational training (PVT) contracts offered by law firms to prospective candidate legal practitioners to require a valid driver’s licence or access to or ownership of a vehicle. The pressure for this change followed consistent complaints by LLB graduates (PVT seekers) who understandably do not all own, or cannot afford, vehicles. Apart from these reasonable financial objections, the amendments also align with modern lifestyle traits of Generations Y and Z (millennial) lawyers who may prefer saving costs (on vehicle loans, insurance, and maintenance) by catching private taxis.
Electronic devices (which are luckily a lot cheaper than vehicles) became more important than vehicles during lockdown. Whether a law firm had a ‘bring your own device’ policy in place or not, employees bring their own devices to work and use them when working from home. As the demand for remote working and social media connectivity continue, perhaps a discussion should follow what requirements a law firm may set in advertisements and employment contracts relating to the ownership and use of specific electronic devices which law firms could have (at least partial) access/control over.
Fortunately, sections of the Cybercrimes Act 19 of 2020 came into effect from December 2021, which create new criminal offences relating to the unlawful disclosure or sharing of electronic messages or files, which may harm a law firm or its clients. Apart from the Copyright Act 98 of 1978 (as amended), possible provisions in employment contracts and the professional Rules, this new law provides additional protection for law firm owners against unlawful and illegal conduct by firm members (or any unauthorised third party) on electronic devices relating to unauthorised use of records, which are proprietary to a law firm or its clients.
Many smart devices are already issued with features compatible with the aspects discussed above. Allowing legal professionals in a firm to use their own devices could potentially save a firm a lot of money on IT management and maintenance services.
How could a more flexible policy regarding electronic devices save your firm operational costs?
No legal practitioner has been unaffected by the consequences of the COVID-19 pandemic or lockdown. Everyone had to adapt fast. Apart from personal and professional losses, deaths or illness suffered, hopefully there were also new opportunities noted, new connections made, and positive changes adopted for the long term.
Looking back at the black swan event, were the consequences worse or better for the development of South African legal practices?
Emmie de Kock BLC LLB (cum laude) is a Lawyer Coach and Managing Director of LawyerFirst Coaching & Consulting t/a Lawyers Working From Home.
This article was first published in De Rebus in 2022 (May) DR 14.
