Safe passage: navigating the return to the office

In the worst throes of the COVID-19 pandemic, we could all be forgiven for wishing for a return to the office and a turning back of the clocks to a pre-COVID world.

Now that working from home mandates, and restrictions on travel and social contact, are thankfully in the rearview mirror, many law firms are plotting their route for the road ahead. 

For some of us, this means accepting that, for better or worse, our pre-pandemic ways of working are being permanently replaced with hybrid and flexible working models. For others, it means a readjustment back to paper files, battles over space in the office fridge and working from a desk that doesn’t double up as a dinner table.

Whichever scenario applies to you, it is prudent to consider the risks created by our return to the office, in whatever form that return may take.

Hybrid hiccups

Hybrid working can be difficult to get right from a risk management perspective. Policies and procedures which are adequate for an entirely office-based or an entirely remotely distributed practice can prove to be the jack of all trades but master of none when transposed onto the hybrid model.

Consider that something as straightforward as a monthly file review may become anything but, in a hybrid workplace. In an entirely paper-based office this could be done in the old school fashion, by retrieving the hard copy file and reading through it. Likewise, in a fully paperless, remote setup it should be easy enough for any fee earner to access the electronic file and quickly review the critical information. 

In a hybrid model, however, should there be a combination of paper and electronic files? Will fee earners with a preference for paper be permitted to use hard copies if they want? If so, is there a system in place to ensure that someone reviewing the electronic file is not missing something present in hard copy only, or vice versa? Are hard copy file notes, letters and other items consistently and timeously saved in electronic format so as to be accessible from any location? 

A breakdown in any of these basic systems, even if only for a short period or in a small minority of cases, could lead to an interlocutor being overlooked, a deed being misplaced, or a client not being updated about a development, with the consequence that a complaint is made. 

A moving target

It is likely that, even at firms which have elected to return fully to the office, individuals may still work remotely on an ad hoc basis. 

Where there is movement of people there is likely to be movement of confidential information, whether stored in hard copy files or on laptops, tablets and work phones. The thought of losing any one of these items on the commute to and from the office is enough to make most of us break into a cold sweat. 

There is no time like the present to test the security of anything which could fall into the possession of a third party. We need to be taking whatever steps are necessary to ensure that the data on any work equipment being moved from office to home are adequately protected in case of loss or theft. Steps as simple as ensuring screens automatically lock if left inactive for a short period cost nothing and can materially mitigate risk.

The potential for loss of equipment and data will be greater in workplaces which have implemented hotdesking, or any hybrid working arrangements intended to phase out the use of desktop computers and landline phones in favour of staff bringing their own laptops and work phones when they attend the office. Ensure that everyone is adequately refreshed on your data protection policies and reminded of the importance of being diligent in this area.

The Law Society of Scotland’s website contains useful resources regarding cybersecurity and data protection more generally; this article is not intended to address those topics. 

Oversharing

One of the consequences of the perceived success of widespread remote and hybrid working is that some of us are not, in fact, returning to the same office that we decamped from in March 2020. We may also now be sharing our workspaces with third parties.

For many firms, enforced remote working led to the conclusion that a downsizing of physical office space was possible. That has in turn led to an increase in the use of shared commercial spaces, where meeting rooms, desks, kitchens and administrative facilities are shared by more than one business and can be utilised on an “as and when required” basis. 

Prior to the pandemic this trend had already gained some traction, principally in the creative and tech industries. As the return to the office takes place, the attractiveness of this model of working may grow. It seems likely that law firms will be among the businesses considering its viability.

It should surprise no one that a client is not likely to want the intimate details of their sensitive case loudly discussed in a shared workspace for all and sundry to hear. Beyond commercial sensitivity, and basic respect for privacy, discussing confidential information in a shared commercial space, which amounts in practice to a public forum, risks falling foul of your professional obligations.

In terms of those obligations, solicitors do stand apart from other businesses; we should always be asking whether any shared workplace offers solutions to mitigate the risks our profession faces. If not, perhaps this kind of sharing may not actually be caring for our clients.

Postal problems

Various firms have decided to close offices in a move towards streamlining and reducing overheads. This trend is occurring both on the high street, where branch offices can often be closed because those working in them can operate just as well remotely, and in large firms wanting to focus their attention on core office locations.

A corollary of this trend is that administrative functions are often centralised. In management speak, this manifests itself in the creation of hubs handling all administrative work in support of all fee earners, no matter where they are located.

The effects of this on how firms screen and process mail, often a firm’s first line of defence from a risk management perspective, may be overlooked. Bear in mind that paper, while certainly finding less favour than electronic documents, has not gone away and is unlikely to do so any time soon. By way of example, Lockton suggests that solicitors’ clients send the property purchase questionnaire (a risk management item available on the Lockton website) by post, rather than via email. Hard copy post cannot be treated as an afterthought. 

Consider an English headquartered firm with an office in Scotland. A centralised postroom located in England will be unfamiliar with Scottish deeds and court papers, and may be unable to prioritise incoming correspondence. Alternatively, a high street firm with several branch offices, each focusing on different types of work, may elect to centralise administration; will systems that previously dealt mainly with court work be robust enough to handle an increased volume of other work?

It is easy to see that the risk of wills going astray or deeds going unsigned will materially increase if the above pitfalls are not avoided. 

It should not be assumed that a permanent return to the office, even on a full time basis, is a benign event from a risk management perspective. Firms need to give careful thought to the practicalities involved in the return and be vigilant to risk.