On supervision, the SRA expects firms to have appropriate and adequate measures in place. This is not prescriptive language and provides important flexibility for firms.
You can supervise effectively using Zoom or Team Meetings, FaceTime, Skype, email and telephone. There is no ‘one size fits all’ approach because each firm’s needs differ, but what is clear anecdotally is that the key to discharging your regulatory responsibilities is the effective use of technology.
Drilling down into the options, there is the screen-sharing option, regular virtual meetings, remote training and, as one firm leader says, “being available and accessible”.
One senior partner tells me that supervision is “perfectly possible on a remote basis”. His trainee solicitor passes all her correspondence through him for correction and review; they talk on Teams and Zoom; and he has put her on more remote learning platforms than he would have done in normal times – and “it has all worked well”.
Another senior partner facilitates weekly catch up calls and daily correspondence via Chat.
All non-partner staff need supervision to some extent, but the most junior staff (trainee solicitors and NQEs, for instance) require the most intense, strategic supervision which has needed to continue seamlessly – albeit remotely.
As Alan East so helpfully puts in his helpful paper for the Law Society on Supervising trainee solicitors during coronavirus: “With supervision arrangements in place that your firm is comfortable with, the SRA’s position is that there is no maximum period for remote supervision. The current situation is ongoing, with no definitive end point at this time, so arrangements should be made with this in mind.”
Questions firms need to consider include to what extent you trust certain people to work from home. Emanating from that should be considerations as to how much supervision they need – both subjectively and in the context of your minimum regulatory requirements.
Firms have the obvious hurdles to jump – practical difficulties and tech problems, for example. But they also need to beware of other risks areas. Compliance expert Tracey Calvert refers to “the rogues who think they are ‘out of sight, out of mind’ and forget about the compliance policies and procedures”; then there are those who are too relaxed while working in their home environment.
Don’t forget the wider issues around maintaining effective supervision. This means ensuring effective communication, constant monitoring and record-keeping of what supervision has taken place – and the need to beware of the cyber risks around all the tech being utilised.
The SRA stated at the very start of lockdown, that while it will continue to expect firms to “do everything to comply” with their regulatory requirements, it would take a proportionate approach to enforcement, focusing on serious misconduct and “clearly distinguishing between people who are trying to do the right thing, and those who are not”.
Firms who are trying to do right the thing should take this as a salve for any worries they are harbouring around supervision of their staff.
Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.