COVID-19 has done what many thought would take eons: forcing law firms to switch to remote work in what felt like an overnight transformation. So far it appears to have gone reasonably well. Prior to the pandemic, if a firm staff member were to ask to work from home long-term, it was very likely they would feel like they were risking their position just by asking the question.
I’ve been there! Work didn’t revolve around life – life revolved around work. This has now changed drastically. Strategically, it would be wise to not just consider this experience as a temporary pandemic-related process diversion but, rather, to implement remote work within the structure of the business into the future. Corporate culture has been itching for change, and this is it.
Despite disruptions caused by COVID-19, client expectations have not changed – firms need to demonstrate that they can continue to meet client pressures without any dip in productivity despite operating in a remote, virtual environment. This means finding ways to do more with less and devoting time only to high-value work. Those firms that can effectively leverage their IP repurpose work and effectively – and rapidly – bring the right expertise and resources to the table will provide better outcomes at a lower cost.
The main challenges facing lawyers today lie in their relationship with new technologies. These can not only hinder the expansion of a law firm but also serve the new form of competition that is LegalTech – that is, companies that offer legal services using new technologies. It is essential that law firms adapt their way of doing business to the restrictive measures brought on by COVID-19. This adaptation includes an increase in remote working using technology tools dependent on telephony and internet based client interface.
What role does technology play in successfully embracing the hurdles?
The pandemic is pushing lawyers to integrate new technologies into their way of working. Some tools allow lawyers to continue their activity despite the quarantine, such as electronic signature solutions or tools to generate virtual meeting rooms. It also seems appropriate to highlight the importance for law firms to establish a relevant communication strategy through their website and their social networks to be able to develop a clientele, whatever the circumstances.
Although simple as a concept, the forced shifting of gears towards working from home has very much been an eye-opening experience. Yet the sentiment toward remote work seems quite positive overall, thanks to video-conferencing tools such as Zoom, team chat platforms, and all-in-one communication platforms such as Microsoft Teams and Google Suite. Depending on jurisdiction and various matters that may require in-person appearances – or, say, if a staff member needs to pick up a document or file from the office – it is now becoming somewhat of a nuisance to not have the ability to complete whatever task is at hand remotely.
The shift to a work-from-home model has introduced new security concerns and exposed endpoints, leaving many law firms extremely vulnerable to potential data breaches and ransom ware attacks. Clients are auditing their data security practices and systems at a much greater rate. In addition to demanding greater innovation and process optimization, clients are laser-focused on data handling practices and security. To remain competitive and retain client trust, addressing data security will be one of the top priorities long after the pandemic recovery.
Situation of returning to normalcy i.e. reverting back to the pre – Covid 19 scenario where the entire fraternity goes back to their offices, is not expected to happen overnight. This is the trend that the legal industry is now facing, and it should be considered that staff will potentially want, or need – due to childcare, etc. – to work from home. Getting back to work in general won’t be as straightforward as flipping an “open” sign in the window and expecting staff to revert to pre-pandemic times. We don’t know exactly how long it will be before we could have that kind of normalcy.
In the meantime, self-care is one of our greatest priorities. It also should be understood that others need this care for themselves as well, as we are all forging through this together. A golden opportunity also exists to build better communication and trust with staff and colleagues. While we look toward the light at the end of this tunnel, we must continue to be mindful of the necessary precautions of this time: staying home and wearing a mask.
The impact of the Pandemic on the Legal Industry
Despite the colossal impact of the Pandemic on the industry the world would still require lawyers and solutions. As firms respond to clients in crisis mode, they’re redirecting their junior lawyers to litigation and bankruptcy practices. There are certain areas which will see acceleration of demand of legal services and the same are as –
Bankruptcy & Restructuring
This practice has seen the biggest surge in work, as vulnerable companies seek out lawyers to manage their liquidity and solvency, recover financial losses, and handle their bankruptcies. There’s been a significant growth in bankruptcy staffing as firms reallocate from transactional areas.
When recession hits, law firms go into battle mode and shift their focus from transactional to contentious, as clients' concerns become less expansionist and more survivalist. Firms are getting ready for an uptick in litigation six months to a year after the pandemic. Inevitably, people and companies will look for ways to pin responsibility on other companies for a variety of business risk and damage.
Government & regulatory
Firms will really need to bolster their regulatory and policy practices if they aren’t strong already because the government has been critically involved in the financial and health-related solutions to these current challenges.
Firms are busy advising healthcare clients on how to navigate the uncertainties and unprecedented challenges connected to the outbreak. Healthcare providers for example may have legal questions as and when they need to change how they usually operate as a direct result of the pandemic. The healthcare industry will remain relatively hot despite the likelihood that we will see fewer transactions in the short-term as everyone shakes off the effects of shutting down.
Health insurer clients will also be very busy as a surge in signups for health insurance is expected, with rising unemployment leaving millions without employer health benefits.
Under the wider insurance market, there is almost too much to say on the impact of Covid-19. In brief, commercial and personal claims and reinsurance will be contentious topics for several years to come. Globally, certain states will underwrite part of the financial risk. Expect a headcount increase in this sector while the world settles the financial losses from the pandemic.
Tech is one of the few transactional sectors that so far have not shown a reduction in headcount and this practice area to be more resilient during the recession. Technology, cyber security and privacy have moved beyond being just part of the discussion to being areas that are implicated in almost everything that lawyers do. The tech transactional market remains a buoyant sector, as we’re relying on these products to solve all kinds of social distancing obstacles. Companies such as Zoom are thriving, privacy and security lawyers will also be in high demand to help companies navigate this new virtual and digital world we are experience.
Labour & Employment
Covid-19 have had a profound effect on this sector, where we expect to see a significant increase in legal activities as businesses reduce staff costs to survive in a recession or adapt to new ways of working. How we allow workforces to work differently, so they can continue with their operations in a lawful and compliant way, is the area of focus now.
Intellectual Property, the most vital and pursued subject during the post Covid situation
Starting in the early 1990s, when IP was first integrated within the multilateral trade system through the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights agreements, the dominant policy discourse has been individualistic and maximalist. IP laws and treaties exist to maximize the monopoly rights of IP rights holders. This “trade in IP” approach has legitimated an individualistic winner-take-all narrative that has benefited major producers and exporters of IP, countries and companies alike. Under this competitive and predatory paradigm, certain countries, kinds of innovation and individuals and groups are favoured over others. Indeed, this maximalist ideology has led IP-exporting nations to ramp up IP protections through regional and bilateral free trade agreements and investor-state dispute mechanisms.
In the throes of the pandemic, fear and concern have caused many countries to signal a retrenchment from global institutions toward a more protectionist future. This move suggests that IP law and practices risk becoming even more individualistic and maximalist.
Innovation and creativity thrive in open and collaborative environments. The pandemic has taught us that successful and timely medical solutions require knowledge sharing and global cooperation at unprecedented levels. Further, the possibility that IP rights could be used to limit or even deny access to COVID-19 treatments and technological solutions is simply unthinkable during a global emergency that has put all of humanity at risk. Cooperation and collaboration will have to be the guiding principles if the world is ever going to recover from this unprecedented crisis. Finally, it is imperative to shift the discourse before new IP superpowers such as China take full advantage of a winner-take-all IP environment. China is protecting IP, especially patents, at exponential rates. It also has the advantage of being one of the few countries to control supply chains in the manufacture of equipment, tools and treatments for COVID-19. Bringing China into a new IP framework will be essential.
Prior to the pandemic, new ways of thinking about IP were already in play. These approaches advanced collective strategies that eschewed the winner-take-all model of IP ownership, challenged the legitimacy of IP maximalist formulations, and scrutinized the structural inequalities inherent in IP laws and practices. Because of these efforts, a new framework for national and international IP is emerging from this crisis, one that is premised on greater collaboration, balance and inclusion. We are witnessing this shift in real time during this global public health emergency.
Importance of collaborations in IP
As scientists and researchers scramble to develop vaccines, medical treatments and new technological solutions to combat the COVID-19 virus, certain stakeholders have immediately taken a competitive stance. They have staked their claims to exclusivity over the IP developed out of these global research efforts.
In contrast, many others have approached the question of IP and the pandemic from an entirely different vantage point. Multiple and diverse stakeholders including national governments, international non – governmental organizations, and IP rights holders from the public and private sectors have called for collective, collaborative and even free and open models for IP sharing. These voices, whether advocating for patent pools or pledges, generous IP licensing terms and conditions, or open science vaccine development, have overtaken those who have positioned themselves along traditional individualistic lines. This spirit of international cooperation speaks to the gravity and enormity of the COVID-19 health crisis. However, had it not been for those who had already challenged the false binary of all-or-nothing IP, the models of IP sharing currently being advanced would never have been as widely accepted!
In the post-pandemic environment, maximalist and individualist approaches to IP is giving way to more sophisticated and nuanced collaborative strategies that lie along the spectrum from maximum protection to no protection at all. Whether achieved through voluntary agreements among IP rights holders or advanced through domestic and international policy, IP-sharing models will become the prevailing norm more. This new norm will have the effect of tempering winner-take-all excesses.
A pragmatic approach in IP
IP rights have never been — nor should they be — absolute. IP laws have always placed limits on the scope of the exclusive monopoly — whether in terms of duration, scope of protection, or legislated carve-outs for certain third-party uses. Over time, however, exceptions and limitations to IP rights have been increasingly regarded with suspicion by those who advocate for greater IP protections. These IP maximalist approaches have constrained their scope with a view to eliminating them entirely. A prime example relates to compulsory licensing provisions in domestic IP legislation. A compulsory license permits governments to do certain things with third-party IP when the IP rights holder fails to act. Because their effect is to deprive IP rights holders of full control over their IP, compulsory license provisions have been largely restricted in western industrialized countries. However, the pandemic has laid bare the fact that governments must have sufficient ambit to work around IP in times of emergency. As a result, some countries have been amending their patent laws to expand their existing, narrow compulsory licensing rules to provide maximum flexibility to the manufacture or import of COVID-19 vaccines and other patented treatments and technologies.
A post-pandemic IP future will recalibrate domestic and international laws and treaties to ensure greater checks and balances on the IP monopoly. It will affirm the necessity of robust IP limitations and exceptions and reverse the maximalist trend that has, to date, encouraged their obsolescence.
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