Frequently asked questions regarding COVID-19
Solicitors’ certificates and Rule 11
The LPLC have advised they are seeing increasing incidents of requests for solicitors’ certificates for loan and guarantee matters that could potentially breach rule 11 of the Legal Profession Uniform Law.
Lawyers acting for financiers are reminded that rule 11.8 says they must not aid, abet, counsel or procure any other solicitor to provide evidence otherwise than in conformity with rule 11.
Verification of identity of the borrower or guarantor must be done in accordance with the Verification of Identity Standard set out in schedule 8 of the Model Participation Rules. The Law Institute of Victoria Australian Legal Practitioner’s Certificates or Law Society of NSW Declaration by Borrower/Grantor of a Security Interest Schedule 1, 1A or 1B must be used. The LIV certificate cannot be amended and a letter or email from the borrower or guarantor’s practitioner cannot be provided in lieu of the LIV certificate.
In the current remote working environment where lawyers cannot do an in-person Verification of Identity, rule 11 cannot be complied with. Instead, Financiers may accept from a borrower or guarantor a written acknowledgement of having received legal advice without breaching rule 11.
LPLC have released a blog with practical guidance on this issue, which you can read here.
Commercial Tenancy Relief Scheme
The Victorian Government has introduced the Commercial Tenancy Relief Scheme to help ease the financial hardship faced by some tenants and landlords following the coronavirus (COVID-19) pandemic. Under the Scheme, the Victorian Small Business Commission (VSBC) is providing commercial tenants and landlords with access to free mediation to support fair tenancy negotiations. For further information, download the VSBC fact sheet or see the VSBC website.
Supervision of other practice staff
Principals should be mindful of additional risks arising out of remote supervision of staff who have responsibilities for the payment of trust money during COVID-19. Where people are away from their normal working environments and normal working practices, they may experience higher levels of stress and/or changes to their systems of oversight. Principals must maintain appropriate levels of responsibility of lay staff. In recent years there has been an increase in defaults in trust accounts perpetrated by non-legal staff given responsibility for the trust account with inadequate supervision.
You should ensure that the processes and technology you use for trust account banking where you share information between staff safeguards the confidentiality of client information. This includes emails, video conferencing platforms and document sharing platforms. Cyber security remains of paramount importance. You should never give another person your password so they can access the trust account.
Lawyers are targeted by cyber criminals because they transact money – often large sums of money.
How cyber criminals gain access varies, so it is important at a minimum to secure your technology on a number of fronts and create a culture of cyber-risk awareness. Cyber security is not just an IT issue. It is an essential part of today’s legal practice and everyone has a critical role in preventing cyber-crime. Here is one recent example of a Malware attack.
The LPLC has resources that can help you protect against cyber attacks.
Changes to how you practice
Please note that where a proposed change to how you practice is in line with the general principles of our regulations we don’t need you to contact us first. For example, we won't provide advice on the types of computer programs you should use for meetings, or how to set up your home office. The LIV has valuable resources that can be used by both members and non-members.
Questions about practice management
The LIV Practice Management service offers free support for members and non members regarding starting, managing and closing a legal practice, human resources, day to day practice issues and requirements and obligations under the Legal Profession Uniform Law.
If you can't meet with your clients and need to take instructions
We know that there may be times when you will need to take instructions from clients over the phone, as it will not be possible to meet face-to-face. In these circumstances, you still need to assure yourself that you are receiving valid instructions.
We expect you to ask questions of your client to ensure they aren’t being unduly influenced by a third party. We also expect you to take extensive files notes of all conversations. If there are language barriers, please make sure you organise an interpreter to assist you. Finally, please remember that if you are uncomfortable about your client’s capacity to give you valid instructions for any reason, you may need to decline to act for them. Whatever decision you make, ensure you document the considerations you made and the reasons for your decision.
In our last PC renewal, only 5% of sole practitioners and sole legal directors reported having a contingency plan in place for the management of their practice, should they become unable to do so. I strongly encourage you to do this if you haven’t already. In particular, please consider what safeguards you can put in place in case you need to self-isolate or are unwell, for example by identifying a legal practitioner who can help run your practice. Please note that if you cannot run your practice due to ill health, or for some other compelling reason, and do not have a contingency plan, you must contact us. We will need to consider available options, which may include a formal External Intervention, being the appointment of a Manager, to keep your practice operating. The LIV has valuable resources that can be used by both members and non-members.
Law Library of Victoria
The Law Library of Victoria offers free online library resources available to all registered lawyers, accessible through https://www.lawlibrary.vic.gov.au/. All you need to do is register to get access at https://www.lawlibrary.vic.gov.au/library-services/registered-user-services.
You can read more about the services the Law Library are offering to lawyers during COVID-19 on this Law Library fact sheet.
Law Institute of Victoria
- COVID-19 hub page
- Guidance on witnessing documents electronically
- LIV membership rates for 2020/21 reduced to $99
- Consolidated guide to Victorian and Commonwealth court protocols in relation to Covid-19
- Guide to the Victorian Pandemic Declarations, Directions and Determinations
Legal Practitioners' Liability Committee
- Video conferencing in the COVID-19 era
- Deferral options for paying premiums
- COVID-19 update
- Practising safely during COVID-19