Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, commencing on the beginning of 2 September 2021, sets out the requirements for an authorised worker to leave an area of concern for work. A list of the NSW Public Health Orders currently in force can be found here.

Authorised workers must not leave an area of concern for work unless they have obtained a permit from Service NSW, and have received their first dose of a COVID-19 vaccine. If the authorised worker cannot receive a vaccine for medical reasons, they must obtain a medical contraindication certificate. Authorised workers must carry evidence of their name, place of residence and vaccination when leaving the area of concern for work. The authorised worker must produce this evidence if requested by a police officer, their employer, the occupier of their work place, or an authorised officer.

The current list of LGAs of concern can be found here.

Recently, the NSW Government amended the COVID-19 rules to add “critical legal services” to the list of authorised activities that enable people who live in the relevant Local Government Areas of concern to leave that LGA for work, if the business is allowed to be open. 

The order notes that where an item in the list specifies an activity, the effect is to exempt a worker employed or engaged to provide services that are necessary for that activity.  You will need to consider your own particular circumstances to determine if this applies. If you are living in an LGA of concern please have regard to the information on the NSW Health website.

We also remind practitioners to stay informed and access the most up-to-date information as the health regulations are being amended frequently. You can subscribe to the NSW Law Society COVID-19 update here. 
 

The Fair Work Ombudsman has prepared guidance about COVID-19 vaccinations in the workplace, which includes consideration of the circumstances where an employer can require their employees to be vaccinated, and what an employer can do if an employee refuses. The guidance is available here. The Fair Work Ombudsman recommends that employers seek their own legal advice if they are considering making coronavirus vaccinations mandatory in their workplace.

On 22 April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 amended the Electronic Transactions Regulation 2017 to allow the signing of certain documents to be witnessed by audiovisual link. On 28 September 2020 the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 incorporated these electronic witnessing provisions into Part 2B of the Electronic Transactions Act 2000 and extended their operation to 31 December 2021.

Part 2B of the Electronic Transactions Act 2000 provides an alternative mechanism to allow witnessing of documents by audio visual link when those documents would otherwise need to be witnessed in the physical presence of a signatory. It applies to a range of documents governed by NSW legislation, including wills, powers of attorney and enduring guardianship appointments, as well as deeds, agreements, affidavits and statutory declarations. Note that the list of documents to which it applies is non-exhaustive.

The Law Society has developed a number of FAQs in relation to the remote witnessing provisions. A more detailed guidance paper on the implications of the provisions is available here.

The Law Society’s Property Law Committee has prepared some FAQs on FAQs regarding conveyancing services in the context of the current COVID 19 restrictions.

The Office of the Registrar General has established a dedicated COVID-19: Guide for eConveyancing webpage. For questions about verification of identity and execution of the client authorisation Look at the Australian Registrars' National Electronic Conveyancing Council (ARNECC) guidance for eConveyancing . NSW Land Registry Services (LRs) also have helpful information on their website.

Legal practitioners must comply with their personal undertakings, which is different to conveying your client’s undertaking on their behalf.It is not appropriate to seek undertakings from your colleagues that are going to prove difficult for them to control and fulfil (see Conduct Rule 6).

Maintaining Confidentiality

Wherever you are working, you must maintain confidentiality. Here are some tips:

• Lock your computer when you leave it
• Shut the door when you are talking
• Be aware of the penetration of discussions on microphone rather than through a handset
• Keep all papers secure
• Remember that you can’t discuss matters with your family any more than you ever could.

Remote Supervision

The Law Society has issued remote supervision guidelines to assist law practices in continuing to service clients despite the COVID-19 remote working requirements.

It is imperative to implement clear and consistent communications amongst your staff and with your clients. Here are six tips to help you with your communications strategy:

Stay connected and keep informed
Although you and your staff may be working remotely, this does not detract from your responsibility to ensure you remain informed of all legal work that is being carried out. This can be done using one of the many online file sharing and communication tools which are readily available such as MS Teams or Zoom.

Manage client expectations
It is important to keep clients informed of any changes in your working arrangements so they can feel secure in the knowledge that you remain available. This can include updates to your website, re-directing your office phones to mobiles or a recorded message on office phone lines with alternative contact details. You should also consider including updated contact details in your emails.

Prioritise
Disruption to business, as usual, can involve juggling competing tasks. Use this as an opportunity to fine-tune your productivity skills, one of which is to focus on the important tasks. One such task is ensuring that critical dates are not overlooked. Ensure all staff have access to the critical dates calendar and it is checked daily.

Take contemporaneous file notes
With a sudden move to remote working, more and more conversations with clients may take place online via Skype or teleconference. It is imperative that all staff remember to take contemporaneous and comprehensive file notes of all client interaction particularly noting any instructions received and advice given. It is always a good idea to confirm instructions and advice in writing as soon as possible.

Be realistic
In these changing times, be realistic in what you can achieve. Overpromising and underdelivering is never a recipe for success!
Read the Compliance review Toolkit.

Dealing with the Court
Conduct Rule 22 which prohibits direct communication with the Bench continues to apply, despite the current situation, and our adherence is vital to the proper administration of justice. (Note that it has always been an exception where the bench seeks the communication).

1. Job Security

Consider the Australian Government’s recent initiatives, including JobKeeper payment aimed at helping you retain employment during these difficult times. Read more about the subsidy program for employers and employees.

The Regulatory Compliance Support Unit solicitors are available for confidential discussions and guidance on (02) 9926 0115, in addition to the Licensing solicitors and Registry team. Please read their helpful resources Checklists and the Compliance Review Toolkit.

2. Government Support for Businesses

Legislation has been enacted to provide temporary cash flow support to small and medium businesses and not-for-profit organisations that employ staff during the economic downturn associated with COVID-19. Access information here. 

The Treasury Department’s website has useful factsheets, support initiatives available for individuals and households and a dedicated webpage for sole traders. 

For information on workplace entitlements and obligations for people affected by COVID-19 go to the Fair Work Ombudsman's Coronavirus and Australian workplace laws and Pay during inclement weather and stand down webpages.

3. What about fees associated with being a legal practitioner?

Paying the practising certificate fee is part of making a valid renewal application under the legal profession legislation. While the Law Society will wait for a cheque to arrive in the mail or for an employer to transfer payment for its solicitors, practising certificates are not issued until payment is received.

Professional Indemnity Insurance
If a solicitor is required to be covered by professional indemnity insurance, it must also be in place before the practising certificate is issued. Please contact Lawcover  who we understand are providing extra support to practitioners arising from financial hardship arising from the pandemic

Some law practices manage the payment of practising certificate fees and insurance premiums by making arrangements with a loan company so that repayment is spread over a 12 month period. The Law Society cannot recommend a particular loan company but is aware that solicitors have used the following providers in previous years:

• IQumulate Premium Funding
• Hunter Premium Funding
• Westpac
• Westlawn Premium Funding

Please contact the Law Society Registry by email to registry@lawsociety.com.au or by phone on 9926 0156 should you require further information.

We understand that the Uniform Law is comprehensive in its regulation of your entitlement to engage in legal practice. The Law Society has been responsive to the effect COVID-19 has on practitioners to meet these obligations as follows:

1. Unable to meet the CPD requirements?

The Law Society has issued remote supervision guidelines to assist law practices in continuing to service clients despite the COVID-19 remote working requirements.

2. You still need a practising certificate

Practising certificates are granted in respect of a financial year. Applications for renewal must be made by 30 June and the legislation requires the Law Society Council to refuse an application received after that date. Where a renewal application has been properly made but not determined by 30 June, the legal profession legislation provides for the practising certificate to “rollover” until a decision is made, or the application is withdrawn. In the absence of a renewal application, the practising certificate will lapse after 30 June and the holder will be engaging in unqualified legal practice if he/she continues to provide legal services.

The Law Society compiled a checklist of steps to consider when returning to work.

Click here to see it.

Under Conduct Rule 9, we can (and indeed must) disclose client confidential information where compelled by law. Also, the client is presumably consenting to the disclosure.

What else can the Law Society do for me at this difficult time?

We are here to help. Simply ring, leave a voicemail and the relevant area will call you back. Alternatively, send an email. Because we are working from home, we cannot actually take the calls directly so you must leave a message.

Contact us:

Costs
Ph: 9926 0116
Email: costs@lawsociety.com.au

Ethics
Ph: 9926 0114 
Email: ethics@lawsociety.com.au

Regulatory Compliance
Ph: 9926 0115
Email: regulatory.compliance@lawsociety.com.au

Licensing Solicitors
Ph: 9926 0241 or 9926 0121

Registry
Ph: 99260156
Email: registry@lawsociety.com.au

If it’s not possible to have the trust records written up every week because of remote working what is the Trust Accounts Department’s position on this?

Government directions on COVID-19 mean you will never be breached by the Trust Accounts Department for not complying with all the legislative provisions relating to the maintenance of trust accounts and any reports provided by external examiners will be treated likewise.

However, you must determine the trust ledger balance for each client before effecting a payment. The easiest way is to maintain a separate manual ledger on which you record receipts and payments and then refer back to the bank statements to confirm that the individual receipts have been credited.

How do I satisfy Rule 36(4) with remote employees and where trust money received is by EFT so I can give a trust receipt to the client.

We recommend that you select print for the trust account receipt; you then print it to PDF that can be sent in an email to the client.

I have not been able to have my external examiners report submitted by 31 May 2021. What should I do?

As the due date for lodgement has elapsed you will be contacted by a Trust Account Investigator.

The Trust Accounts Department is sympathetic to the challenging circumstances posed by the COVID-19 protocols and especially mindful of the cooperative effort associated with the preparation and lodgement of the annual External Examiners Reports.

An extension to the lodgement date will be considered on a case-by-case basis

Due to the Government directions on COVID-19 you will never be breached by the Trust Accounts Department for delays in complying with all the legislative provisions relating to the maintenance of trust accounts and any reports provided by external examiners will be treated likewise.

However, in whatever way you determine appropriate to achieve it, you must determine the trust ledger balance for each client before effecting a payment. It may be that the easiest way for you to achieve this is to maintain a separate manual ledger on which you record receipts and payments and then refer back to the bank statements to confirm that the individual receipts have been credited.

It is suggested that when the trust receipt is printed, it can be printed to PDF. The PDF receipt can be forwarded by email to the client.