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.
Stage 4 Covid-19 restrictions
On Monday the Premier announced new restrictions for greater Melbourne and Victoria. These restrictions have an impact on all of us, and at the bottom of the email you’ll find resources that may be able to support you if you‘re struggling.
We have received further guidance from the Department of Health and Human Services (DHHS) regarding the Stage 4 restrictions in the Melbourne metropolitan region that started Wednesday at 11.59pm. Please note that some initial guidance has now changed.
Impact of Stage 4 restrictions on lawyers in greater Melbourne
There is a blanket restriction for legal services performed ‘on-site’ (that is, your office or chambers) unless you are covered by any of the following exemptions established by DHHS. You must work from home unless:
- you are required to attend urgent or priority court or tribunal matters as determined by the relevant head of jurisdiction, including for bail, family violence, remand, child protection, warrants and urgent guardianships, human rights or residential tenancy issues
- you are attending to administration of justice matters for your clients where the matter cannot be reasonably undertaken and/or the client cannot participate reasonably in an online communication, teleconference or by means of an audio visual link facility; and the matter cannot be reasonably postponed – for example signing or retrieving urgent emergency powers of attorney
- staff need to attend on-site for the purposes of performing critical safety and environmental works – for example maintenance of IT infrastructure
Earlier advice about sole traders/operators being able to work on-site has changed. You cannot work on-site unless you fall into one of the exemptions above. This includes barristers working in chambers. Further information about the operation of the exemptions can be found on the LIV website.
- issue any employees with a permit if they are working in the office. Details about the permitted worker scheme can be found at the DJCS website.
- ensure all offices have a COVID Safe Plan if there are employees attending the office.
It is the responsibility of the employer to determine if the justice exemptions apply, and significant penalties apply for individuals and businesses that issue worker permits to employees who do not meet the requirements of the worker permit scheme or who otherwise breach the scheme requirements. Criminal penalties and OH&S sanctions may also apply to those who breach the regulations on permitted activities.
We are experiencing an extremely serious public health crisis in Victoria at the moment. As leaders in the community, and as a profession that prides itself on ethics and integrity, it is vitally important that the legal profession does all it can to protect clients, colleagues, staff and the community by following the spirit and the letter of government requirements. Where possible I expect you to follow the government’s directives.
Links to resources and information:
- DJSC permitted worker scheme
- DHHS information on business restrictions
- the LIV’s COIVD Hub and Stage 4 FAQs, which includes templates and checklists or email to members 06/08/2020
- the Victorian Bar’s website
- the LPLC's advice on working safely remotely
Childcare access limited exemptions for lawyers (updated 19 August, 2020)
To support the administration of justice during Stage 4 restrictions, the Chief Health Officer has authorised an exemption for lawyers under section 15(1) of the Permitted Worker Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme.
This exempts lawyers from the requirement to have an Onsite Childcare/Kindergarten Permit in certain circumstances, even where the person is not otherwise a permitted worker.
The exemption applies to legal practitioners with no other access to childcare who are appearing online as part of court proceedings only, and require access to early childhood education and care, including in-home care. These lawyers will be exempt from the requirement to have an Onsite Childcare/Kindergarten Permit.
The exemption would be applied only where there is not a second carer who can supervise the children (as per DHHS guidance). If there is another carer in the household, it is not necessary that they be a permitted worker or fall within this exemption themselves – they must simply be unable to supervise the child.
The LIV Q&As provides guidance for lawyers in applying this exemption.
Attending local court in NSW?
Legal practitioners who are currently residing in Victoria and have matters before a NSW Local or District Court are encouraged to contact the court to seek alternate appearance arrangements or for consideration that the matter be adjourned. Where in-person attendance is required by the court, it is suggested that an agent in NSW be arranged to appear on the practitioner’s behalf whilst border restrictions are in place.
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.
Supervised Legal Practice during COVID-19
COVID-19 and the need for social distancing means that it is likely that most if not all supervision will need to be conducted remotely. We are therefore suspending until further notice our usual policy that requires prior approval of a remote supervision arrangement where a supervisor and supervisee are employed in the same law practice.
We require a remote supervision plan to be completed for the period of remote supervision. The plan requires input from both the supervisor and supervisee. You DO NOT need to send the plan to us for approval.
A template plan has been developed to assist in ensuring proper arrangements are in place so that the supervisee can carry out their supervised legal work effectively, securely and safely. You can download the template plan here.
Remotely supervised legal work conducted during the period will count towards the requirements under s.49 of the Uniform Law.
We will require a copy of the plan to be submitted to us when the lawyer under supervision applies for removal of the Supervised Legal Practice condition from their Practising Certificate.
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.
Practising certificate renewal fees and payment
Our legislation does not permit us to waive or reduce the fee for PC renewal, nor are we able to extend the time frame for renewal or take instalment payments. However, we have implemented some other changes to how we manage the practising certificate renewal to assist you at this time. These are outlined below.
Removal of surcharge for late PC renewals
You have until 30 June, 2020 to renew without penalty.
Defer payment of your fidelity fund contribution to next year
If you are unable to pay your fidelity fund contribution this year by 30 May, 2020, it can be deferred until next year. If you apply for your PC renewal between 31 May, 2020 - 30 June, 2020, your fidelity fund contribution will automatically defer to next year. When you apply to renew for your 2021/22 practising certificate you will be charged for this year and next year's fidelity fund contributions.
Discount on next year's fidelity fund contribution
If you do renew and pay both your PC fee and fidelity fund contribution by 30 May, 2020 you will receive a 5% discount on the next year's fidelity fund contribution. Discounts next year will be automatically applied when you renew via LSB Online.
Continuing professional development
The requirement to complete CPD face-to-face has been removed. If you have completed 10 CPD units (no matter the format) you can select ‘Yes’ to this question.
If you have not completed the 10 units, and live in a bushfire affected area, you will be fully exempt from this requirement. You can select 'No' and your application will proceed.
If you have not completed the 10 units for any other reason, including COVID-19, select 'No' and the LIV or Victorian Bar will contact you to implement a rectification plan.
You can read more detail on the Continuing Professional Development page.
What you need to do to renew
If you are able to renew your practising certificate now, please do so at LSB Online.
VLSB+C office closure
Our office is currently working remotely and we have limited availability to take phone calls. Please send any queries to our new lawyer enquiry form. Please do not send your query via multiple channels as this will delay our ability to respond.
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're medically unfit or need to self-isolate
If you are unable to complete tasks to the usual high standards of competence and skill because of illness or the increasing restrictions on movement, please document the reasons why you cannot fulfil your obligations, as this may be required later. Let us know as soon as possible if you find yourself in this position. Please use the new lawyer enquiry form rather than phoning us. Be aware that we may require a medical certificate or statutory declaration in the event of a complaint arising from your incapacity.
If you are concerned that someone may be unwell or has been difficult to contact, please let us know via our new lawyer enquiry form so that we can check on their welfare.
External examiners will be completing many of their trust account examinations remotely or via ‘virtual’ examinations. Your external examiner will contact you to discuss how this might work for you. If there are problems with being able to complete these by 31 May we encourage you to email our Regulatory Compliance Programs team at firstname.lastname@example.org.
Please remember that the usual rules and guidelines still apply. When business as usual activities recommence, we will be resuming face-to-face examinations and practice compliance audits.
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.
Access to the Federal Government's JobKeeper Package
Under the JobKeeper Payment, businesses impacted by the coronavirus (including law practices) will be able to access a subsidy from the Government to continue paying their employees. Affected employers will be able to claim a fortnightly payment of $1,500 per eligible employee from 30 March 2020, for a maximum period of 6 months. You can read more about this on the Government's Business support website.
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 2020/21 membership fee reduced
In response to the COVID-19 crisis and to ensure support for all lawyers in Victoria, the LIV has reduced its annual membership fee for the 2020-2021 membership year for all full fee-paying members to $99, including GST. Membership fees for Accredited Specialists and Affiliate members for 2020/21 will also be set at $99 including GST. You can read more on the LIV website.
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