Our world has been disrupted beyond what was imaginable even a few weeks ago, and with it our economy, livelihoods and way of life.
In a world of relentless connectivity, the business world is learning how to exist without person-to-person contact, or as little as possible.
There is no question our practices as a society will never be the same. This is a time of sudden but lasting change.
The world was not ready for Covid-19, nor was the law, but we have been forced to adapt to ensure the world keeps turning, however slowly.
As an integral part of a functioning democracy the law must go on, and people will need advice about particular areas of law.
Courts are interrupted but cannot stop. Traditions are being cast aside, as in other areas. We may have to go further, however.
Lawyers must witness many documents in person, whereas often a medical practitioner can treat remotely, even to a point of performing surgery.
The legal profession and the courts must learn to truly enter the 21st century in every element of practice if we are to deliver services that are essential to our clients.
That will require change by courts to enable, for instance, a document to be witnessed in exceptional circumstances by audio video link. There is no real reason, with careful thought about the chain of evidence, why this should not occur.
Meanwhile, there remains the question of the most common legal problems that will arise in these troubled times. Here are my top four.
Most obviously, businesses require advice about the cumbersome and inflexible Fair Work Act, and our firm’s employment and industrial lawyers are working overtime.
There are provisions in the Fair Work Act that enable businesses to do a variety of things when they cannot function ordinarily, or sections of the business cannot. Those decisions need to be taken with advice to ensure their legality.
By comparison, in the U.S. businesses have far more latitude to hire and fire. Here it must be done to the letter of the law.
Employment advice is easy to dispense, it is not necessarily very expensive, and by definition involves the provision of early advice to avoid claims and expense downstream. Employers should seriously consider consulting a lawyer before they act.
Of course, the other side of the coin is that employed people will also require advice. You have entitlements and may require advice to understand what the law provides.
All that said, employers and employees must have an understanding that all these measures are likely temporary.
Businesses will be back and will need their workforces. But if they’re forced to the wall it’s lose-lose and everyone is worse off.
CORPORATE, COMMERCIAL AND RESTRUCTURING ADVICE
In challenging times, commercial legal practices pivot from transactional commercial ‘deal-making’ work, to advising businesses about how to manage liabilities and protect assets.
Granted the banks and Federal Government are doing a great deal and no doubt there is more to come, but lawyers also have a role to play.
We can’t help these circumstances but we can help manage them for businesses, particularly small and medium enterprise, on whom we depend economically as a nation. It’s best done through an expert.
That aside, many contracts and agreements cater for exceptional and unavoidable circumstances that prevent performance as the parties had intended, so rather than worrying and soldiering on it is well worth getting some advice.
FAMILY LAW AND SEPARATION
It is a sad fact that separating couples need legal advice – even if the separation is amicable.
A division of property of a marriage or de-facto relationship is meaningless unless it is formalised by either a court order or a financial agreement.
This present crisis will test relationships, and some won’t survive. Tragically, reports of domestic and family violence are already on the rise.
Advice regarding intervention orders will also be required, and we have noticed an increase in enquiries.
Family lawyers are able to consult remotely, including giving initial advice and taking instructions. I know this because those in our firm are doing just that, as we work largely from home.
These are trying times. Sadly, a casualty will be relationships. The Family Law Act is there to protect rights and enable resolutions of disputes.
WILLS AND TESTAMENTARY DOCUMENTS
Unfortunately, it takes circumstances such as this to remind us all too frequently of our own mortality.
The majority of Australians do not have a will. If wills have been made they are often out of date owing to changed circumstances such as separation, the advent of children and so on.
Additionally, instruments such as powers of attorney are potentially vital in these current circumstances, as is an advanced care directive relating to your medical treatment should you be ill and unable to make financial and medical decisions.
It is a stark reminder that such documents are vital and are often the cheapest job a lawyer will do. A will doesn’t cost that much unless it is complex.
As a society, we need tolerance and understanding and the thread of law to bind us together, during this period of uncertainty.
If legal advice is required, pick up the phone to a lawyer. It’s a whole lot easier than you may think.
Having practiced through one recession it is clear that, although like every other industry sector in these strange times, the legal profession will need to respond to the very real challenges of working remotely and functioning in a climate where we will need to interact with clients.
We have a vital role to play in guiding and advising our clients. The wheels of justice roll on, and access to justice in tough times is critical.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, immediate past president of the Law Council of Australia and a past president of the Law Society of South Australia.
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