Most commentary on standards of care in the COVID-19 era has entirely understandably focused on medical professionals and the unprecedented circumstances in which they are working. But what approach is likely to be taken to other professionals, also trying to carry out frequently demanding roles despite the effects and difficulties of the pandemic?
Is it likely that non-medical professionals, such as lawyers, will also be judged against a background of "battle conditions", given the previously unthinkable changes caused by lockdown, including a rapid move to wholesale remote working, rapidly changing legislation, court procedures and regulatory guidance, with novel (sometimes urgent) practical issues arising from the inability to do things in the usual way (as discussed in our recent article here)? Will lawyers' actions also generally continue to be judged without the need for expert evidence, in contrast to other professionals who will seek to rely on industry experts as to what was reasonable during the lockdown?
The duty expected of a professional is to achieve the standard of the reasonably competent practitioner. That standard does not usually apply an absolute obligation, or for the professional to go further than is necessary to achieve the object of his or her retainer, but just what a reasonably competent practitioner would do having regard to the circumstances, the standards normally adopted in that profession and what reasonable clients should do for themselves. Accordingly, professionals are generally not liable for errors of judgment, unless that error was such that no other reasonably informed and competent member of the profession would have made it.
However, there will be no easy answers to how COVID-19 will affect the judgments around the standard of care applying to professionals, who while holding themselves out as having a particular skill, or expertise relevant to their profession or industry, will all generally have found themselves in the same boat as non-professionals, in terms of the effect of the virus and its impact on movement, contact with others and the way of working in lockdown. While each act, error, or omission immediately prior to and during lockdown will need to be assessed on its own facts (including the nature of the retainer, the nature of the task, the appropriate rank and specialism of the individuals acting and the circumstances in which the task was required to be performed) the pandemic is clearly going to set the background against which a lawyer's or other professional's actions will be judged.
Undoubtedly, steps will have been taken in immediate response to the virus and the lockdown which will have proved sound, whereas others may not. Advice will have been given to clients by professionals just prior to and after 23 March 2020, that might now be considered inadequate, imprudent or over-cautious. Mistakes will also have been made in the last 10 weeks, whether through the upheaval of enforced lockdown, the success or failure of technology, or the inability to react to newly imposed timescales or restrictions.
Overlaying this is this new world of social distancing and its impact on our physical and mental health. As a result, the reaction of professionals in difficult working conditions, or personal circumstances, will have been varied. Some of our clients have reported "working at home for years", so it has made little difference to them, whereas others will have found the physical and mental impacts significant, with office-like working conditions not possible to replicate at home. Similarly, teams used to daily contact and collaboration may find individuals isolated, with the same level of supervision impossible. In addition, the sharing of their temporary work space with family, the home schooling of children and/or the challenge of caring for elderly or vulnerable relatives at a distance, will undoubtedly have created distractions.
All of these have placed a burden on professional service firms and the professionals within them, who are used to achieving high standards for clients in normal conditions, which they have not had to address before. Many clients will have sympathised, but while the conduct of firms will be judged in the context of events at the time, professionals should not rely on being able to able to plead the inevitable and understandable difficulties of the pandemic entirely to excuse lesser service delivery (and as our colleagues commented last week here, the SRA may refer to being "pragmatic" but in many respects are continuing to operate as usual).
Accordingly, disagreements may well arise around the extent to which COVID-19 related issues are relevant to the applicable standard of care and professional liability. Professionals are still going to be judged by reference to some key elements, which it will be more important than ever to get right in the COVID-19 era:
the nature and scope of their retainer. It will be important to ensure that the scope of the instruction is within the firm's area of expertise and the scale of the task is manageable for the practice in lockdown. Absent either of these, the firm should decline the work or ensure added temporary resources are brought in e.g. contractors, locums or in the case of lawyers, junior counsel;
existing retainers should also be reviewed. If lockdown has affected the ability of the firm to do the work, whether because of remote working or staff absences for example, it should seek the client's agreement to vary the retainer to reflect what can realistically be done. It will be far easier to do so contemporaneously, rather than to try to excuse a problem after the event;
the importance of context. Professionals should be judged in light of all the circumstances at the time and not with hindsight. However, it will not always be clear what those circumstances were and therefore it will be important for firms to make sure that the client's objectives are clear and recorded. Furthermore, that if there are particular challenges or uncertainties about aspects of the work, which may be affected by current or future restrictions, suitable caveats should be applied, including appropriate exclusion or limitation of liability clauses. Firms should also consider their duty to warn clients of known potential risks and consider the scope of retainers to advise on matters ancillary to the main transaction and address them accordingly; Clear communication with clients – and documenting of those communications is key;
knowledge and practice updates. Small high street firms without dedicated PSL resources ought not to be judged by the same standards as large city firms, but all practitioners will need to give greater attention to evolving practice and procedures, in particular with litigation, where failures to comply with rules or practice directions, not relieved by the Courts through the exercise of discretion, are unlikely to be defensible on the grounds of difficulties with remote working or access to materials. Where parties in litigation are faced with requests for extensions of time or applications for relief from sanctions for example, proper consideration should be given to the Court's new COVID-10 practice direction PD51ZA and the overall reasonableness of the request.
Law firms of whatever size should be seen to be trying to do everything they reasonably can to comply with rules and professional guidance, while also being alive to the possibility that evolving work-arounds during lockdown might not ultimately be acceptable (e.g. witnessing of documents remotely). Therefore firms should consider revisiting such work done in lockdown, once social distancing is no longer required, to ensure that opportunities to perfect steps taken at the time are not missed.
management engagement. Firms hold the overall responsibility for active management to keep on top of client work, to ensure it is being handled as required, despite the lockdown, or that issues being caused by the restrictions (whether client or staff related) are identified and steps taken to deal with them. Achieving the above is no easy task and there may be difficult answers around resourcing and training and the speed at which it is delivered, some of which may become relevant to questions of liability in due course.
In relation to claims already arising from pre-lockdown advice, or from advice given during the last 10 weeks, professionals will not be judged with hindsight and failures to predict the impact or scale of the virus and the restrictions are unlikely in most cases (subject to the nature of the engagement) to count against the professional and result in a finding of negligence. However, while the Courts may be more sympathetic as to whether the applicable standard has been reached in relation to matters and transactions in the early days or weeks of COVID-19 and the lockdown and whether no other reasonably competent member of the profession would have acted in the same way (e.g. mistakes in relation to remote hearings), one suspects that something increasingly less tolerant will emerge for acts or omissions occurring later. That said, more may also be expected of the reasonable client in circumstances where the impact of the coronavirus may be expected to have been reasonably apparent, such that the professional would not be expected to advise on what is obvious.
As ever, a robust approach to risk management ought to protect professional firms in limiting the exposure to claims arising from the pandemic, but there is little doubt that the current circumstances represent a significant challenge to professionals in maintaining standards and providing appropriate and timely advice. Irrespective of that, COVID-19 may mean that clients will not achieve the outcome they were expecting and seek to blame their advisers - but they would do well to remember the basic principles surrounding the standard of care. Equally, for experts subsequently opining in litigation on the actions of professionals in lockdown (which may also – contra the norm - need to extend to lawyers' liability cases for an expert view of practice on the ground in the lockdown window) they will need to do so acutely mindful of, and having carefully examined, the circumstances at the time and not with the benefit of hindsight.