Nicola Laver asks how firms are approaching their supervisory obligations during the pandemic
Russell Conway has, by his own admission, had a luckier lockdown than some. It’s been somewhat of a family affair for the senior partner at Oliver Fisher. He has been in the office in Notting Hill throughout the lockdown, along with his wife – also a solicitor in the firm – and his son who’s about to qualify as a solicitor.
Even the receptionist ventured in. The firm bought him a bike so he could avoid public transport. The Conway family drove in. Conway tells me: “My trainee had a day in the office today – her first for four months. I asked her if she felt she had been properly supervised and had she lost any ‘training’. She felt that in so far as training and supervision went that had been fine. But she missed the office, office banter and interactions with colleagues.”
But what had the preceding four months looked like for the supervisory relationship between him and his trainee (one of three at the firm)? Conway says: “While she has been away we keep in contact almost hourly by email. We talk on Teams and have regular departmental meetings on Zoom. Using Teams she can also chat to work colleagues.”
The trainee has a number of files but deals with them “subject to very close supervision”. Conway has to see emails and documents before they go out. “And, for example, if she drafts a witness statement we make changes together until the document is in its final format,” he adds.
It’s the coupling of effective leadership with the comprehensive, imaginative use of technology which is key to successfully supervising lawyers. Firms that, for instance, promptly transferred their ‘normal’, pre-covid-19 supervision processes to a remote set-up had a head start.
Zoom, Team Meetings and Skype quickly replicated face-to-face meetings, enhanced by valuable extras such as screen sharing and virtual ‘rooms’ for group meetings. The volume of webinars and other forms of remote training increased, as did the dependency on the usual digital communications and group chats.
But what does ‘successful’ supervision look like in the covid-19 era? The bottom line is, it can only be successful where it satisfies the regulatory requirements.
The Solicitors Regulation Authority (SRA) Standards and Regulations (STARs) code for firms (paragraph 4.4) requires “an effective system for supervising clients’ matters”. The code for individuals (paragraph 3.5) states: “Where you supervise or manage others providing legal services: you remain accountable for the work carried out through them; and you effectively supervise work being done for clients.”
Unlike their previous incarnation, these requirements are not prescriptive but the regulator will expect you to justify the decisions and actions taken. These expectations have not changed despite the enforced changes in working practices.
Concerningly, compliance expert Tracey Calvert, director at Oakalls Consultancy, appears slightly cynical as to whether it’s really possible to supervise remote workers effectively.
She warns: “Supervision must be effective notwithstanding practical difficulties; and undoubtedly remote supervision is going to prove harder than office-based supervision.
“The SRA, despite the talk of pragmatism, will expect the firm to adapt office-based processes to suit this new environment and to ensure that our high standards of professionalism do not slip.” However, the new wording offers a lifeline: flexibility. This is crucial as supervision needs differ from firm to firm.
Conway is confident that all three trainees – none of whom were furloughed – “have done a magnificent job during lockdown. All contributed enormously to the firm and all were effectively supervised”.
He observes: “In a funny sort of way, I have not had to make any changes as we did most of this before lockdown. But trainees have missed out on client meetings, albeit that I have included trainees in some Zoom calls (a great many of our clients have preferred telephone calls rather than Zoom meetings).”
This is what the Law Society of Scotland calls “osmosis by design”. It says “observation/learning by osmosis moments” may be missed when working from home and can be difficult to replicate. The Society suggests: “If you have a client call, client meeting or a virtual court appearance ensure that the trainee is included as often as possible. This gives them an opportunity to learn, take notes, and you can debrief after.”
The pandemic forced the team at Bristol-based Stephenson Law to adapt. But mindful of its regulatory obligations from the outset, the firm’s founder and CEO Alice Stephenson says the firm was “well set up to meet our compliance obligations”.
“Thankfully, flexibility is part of our core ethos”, says Stephenson. “Our technical setup was already in a strong position, meaning we were able to move to remote working a few weeks before official lockdown without experiencing any issues.
“As the legal profession was forced to adapt, we have seen that our investment in technological solutions and improved processes over recent years truly paid dividends.”
But not everything had to change. “As with ‘normal’ supervision”, explains Stephenson, “regular communication and feedback is key, and that has remained constant even during remote working.” Regular team calls and one-to-one sessions allow continual monitoring and training of junior lawyers by phone or – more often – through video conferencing.
“With screen sharing”, she adds, “we have been able to provide real-time feedback on points of drafting and legal issues.” Video conferencing software has been used to carry out mid-seat reviews and other appraisals.
Roger Sands, an associate at Plymouth Wolferstans in Plymouth, is responsible for the firm’s risk management and compliance issues and supervises two commercial solicitors. He undoubtedly speaks for many a firm when he says: “In many ways [supervision] is the same but we just do it differently.”
“We use Teams and mobiles to talk and message. All our files are digital so we can look at the same document and talk. Those I supervise are encouraged to call me (and do) whenever they have something they want to discuss; just as they would interrupt me in the office. It is different; but with flexibility and openness it can work well.”
The firm has the added benefit of a compliance dashboard on which it had been working. Sands explains how it directly links to file review data produced by Microsoft Power BI. “The file review process is carried out in the digital file and the data produced instantly appears on the dashboard. We can therefore immediately see who has carried out reviews, on what file; whether any corrective action is required; and when it has been done.
“That is process of course. It is key and it has to be capable of audit. The softer side is the need to be constantly aware of supervision needs and communication for that.”
Are the solicitors he supervises responsive? “Absolutely”, he states. “In my compliance role I have definitely found that questions coming in from colleagues have increased during the ‘work-away’. There is a greater need to communicate on those type of issues and it is important that people feel that they can easily contact you and feel comfortable doing so.”
Is remote supervision for the longer term viable? Sands says: “Before the pandemic we had been working on plans for greater flexibility in work location, which have obviously developed quicker than we had anticipated! We are working towards a plan of reduced numbers in the office with more junior
lawyers ‘in’ for more of the time; and more senior lawyers ‘out’ for more of the time;
but with a rotation plan in teams for office presence in order to be there for supervision and support.”
Vanessa Challess is principal at Tiger Law, a young firm in Wye, Kent. She is supervising a trainee, two newly qualified solicitors and a paralegal. “We have an instant messaging platform that has a ‘common room’ and client/theme specific channels,” she explains.
“As a team, we are in constant contact, sharing jokes and bonding; my juniors have a couple of different methods to have work approved which we do in redline, discuss, then send out. Chat channels provide instant feedback.”
As lockdown kicked in, Challess erroneously thought the firm would have a quiet patch. It didn’t. So the firm refreshed all its policies and procedures. She comments: “A large part of the firm’s compliance is around remote working anyway; and to meet our regulatory obligations around training I obviously supervise everything closely; our trainees keep daily records; we all attend CPD training regularly; and we have team meetings once or twice a week to discuss workload, allocation, processes and so on.”
And she’s “happy that all of this effort meets and exceeds our obligations… If we are ever in doubt about how to approach a particular issue, we contact the ethics line and ensure we make and record decisions diligently.”
Today’s leaders have the benefit of learning from hindsight. Challess claims to be a lot more available and approachable than the bulk of trainers and comments: “I remember being allowed to visit my training principal once or twice a day, standing silently in front of him as he tore my work apart without explanation.”
She tells of a legal blogger who recently complained that her trainee “couldn’t even pipe up to ask questions and how was she possibly going to cope with working remotely”. The problem is not the trainee,” states Challess.
Ian Greig is Tiger Law’s trainee (on possibly the first ever fully remote training contract). He only started this June but observes that the firm’s system of remote working is “fluid and collaborative, with numerous live projects on the go and multiple contributors from senior to trainee level”.
His work is reviewed regularly, through the likes of email, Zoom and screen sharing, to ensure high quality, accuracy and rapid turnaround times. Greig praises “the culture of participation, collaboration and group learning, and the software/systems [which] enable highly productive remote supervision”.
Great communication within Wollens’ conveyancing team has been “the team’s core strength”, says head of department Judith Manser. She emphasises the importance of communication particularly in the context of mental health and avoiding overwhelm, during a time that “can be very isolating”.
On a practical level, Manser receives weekly reports showing the time recording for each fee-earner and their billing and number of files opened, so she can check what levels everyone is working at and whether or not they have capacity.
“In addition, I have regular meetings with our operations board and as the caseload has increased we have reviewed each individual and un-furloughed people gradually to ensure that those working have more support when needed.”
Manser concedes that both the compliance and practical challenges have been hard. “Everyone has had to adapt to the daily changes throughout the lockdown”, she comments, “and then the relaxed restrictions.
“We have adapted our compliance requirements as necessary and continued with training for staff together with backup from our compliance department to deal with any queries.”
Are the comparatively senior lawyers harder to supervise remotely? Manser – herself a salaried partner – has both salaried and equity partners in her team to supervise. She comments: “We all work well together and communicate. We discuss issues and reach decisions together. I am always open to views from others, but at the same time if a decision is made for the department all those within the department are accepting of those decisions regardless of their superiority. “There is a lot of respect and trust both within my department and the firm as a whole.”
A matter of trust
Trust is a fundamental element of the employer/employee relationship but it has perhaps never been more important with the sudden shift to wholesale home working. There will be many firm leaders who have in recent months questioned whether they really trust a particular individual to work from home in a secure, professional manner.
As Calvert warns: “Hot spots are the less experienced staff who aren’t used to home working and being self-sufficient; the rogues who think ‘out of sight, out of mind’ thoughts and forget about the compliance policies and procedures that the firm requires them to observe; the colleagues who are otherwise just too relaxed and less professional in their home environment.” Then, she adds, there are those who aren’t coping well with isolation and need more support from the firm.
Stephenson states categorically that she trusts her team to deliver for clients whether in the office or at home. “Before the pandemic, there was a preference to have junior lawyers in the office more often for regular face-to-face supervision and feedback, as well as to foster our collective culture and team spirit,” she comments. During lockdown, this is maintained through daily team meetings, ‘coffee and cake’ video calls – and even a socially distanced picnic.
And it’s paid off. Stephenson says feedback from junior lawyers has been positive and “they have all felt supported” throughout lockdown. “This has been reflected in the amount of work they have been doing, as well as the level of feedback and supervision provided. Similarly, clients have not experienced any negative effects,” she adds.
Notably, she said the firm is confident that remote supervision works well and can combine both face-to-face and remote supervision. “We can also be safe in the knowledge that if we ever face a similar situation, we have the tools and processes in place to keep our business running smoothly”, she comments. “It feels like a tipping point for the legal industry as a whole, which is traditionally slow to embrace change.”
Apart from the obvious technological problems that none of us are immune to, other challenges can also arise. Calvert anticipates difficulties in connection with ensuring there is “effective and real time communication to tease out any issues with the provision and quality of legal services and also to ascertain whether the individual being supervised is in need of training, extra support or even discipline”.
There is also the higher risk factor inherent in the increased use of technology – conveyancing carrying the greatest risk. Over at Wollens, Manser comments: “Our IT department is continually assessing our requirements and updating as necessary. We have ensured that all staff have had further training on cyber risks.” Everyone is therefore able to raise queries at any time if they are unsure of anything.
“The challenge for me”, says Challess, “is not about effective remote supervision, but about forging ahead as a firm and building new services and audiences for the longevity of the firm for all of us.”
Her view is that as a profession, we need to get past the idea that effective supervision is about geography. “Sadly, it is all too possible to fail our trainees and juniors from the next room, if you listen to their feedback this is common. I have allowed my team to work remotely for five and a half years so the effects of covid-19 on how we work were fairly minimal.”
As the UK entered lockdown, the SRA said it still expects firms to “do everything to comply” with their regulatory obligations but would take a proportionate approach to enforcement. It would focus on serious misconduct, “clearly distinguishing between people who are trying to do the right thing, and those who are not”.
Calvert reports seeing no actual cases of poor supervision during lockdown so far but she has been reminding her clients to focus on the issue. She comments: “I have been asking them to consider the different types of people who are working remotely and adapt their supervisory response accordingly.”
She advises firms to be “effective communicators delivering strong messages about their and the SRA’s expectations, the support which is available to individuals, and how supervision will work in practice”.
She strongly urges “scrupulous monitoring of supervision requirements to ensure that it is happening and that there is documentary evidence”; as well as soft skills support to help supervisors to be effective. “It’s not an easy role,” states Calvert – a sentiment we can all agree with.
Nicola Laver is editor of Solicitors Journal