In-House Legal: Adjusting to Pandemic-driven Changes
New working arrangements may have unanticipated effects.
Well before the COVID-19 threw the world into such upheaval, myriad forces were conspiring to disrupt companies and accelerate corporate evolution, including the role of legal departments. Data overload, AI and other advanced technologies, privacy and security concerns, and a variety of regulatory imperatives have been driving the kind of change that has accelerated the trend of pulling corporate legal counsel out of their offices and into the fray — or even making their departments part of the fray — as they increasingly resemble other business units with strategic roles in the enterprise.
Now, as the effects of COVID-19 play out, in-house legal counsel and legal ops departments must carry an even greater burden as corporate risks and regulatory demands rise, the employee landscape changes, and budgets are revised. Not usually at the head of the pack in moving technology efforts forward, legal teams may need to be there now, and those with applicable skill sets (or those willing to develop them) will be in a better position to manage the challenges that are sure to arise from the effects of the pandemic.
Understanding the impact of pandemic-related changes in certain areas and responding thoughtfully will make a big difference going forward.
The Work from Home (WFH) mandate has perhaps ushered in one of the biggest environmental adjustments. With both communications and technology use disrupted, heightened attention to cybersecurity risk and employee work habits is a must, not just for legal personnel, but across the enterprise.
Cybersecurity intrusions have increased dramatically as bad actors strive to take advantage of the disruption. Phishing and ransomware attacks — with COVID-19 offering myriad avenues for deception — is rampant, exacerbated by remote working arrangements that may not as yet be as secure as those in the physical workplace. To the greatest extent possible, companies should undertake efforts to educate employees and customers to be on the alert and take extra care with electronic communications.
Employees may be cultivating at-home behaviors (e.g., creating paper, using video and different external communication methods, relying on personal technologies rather than those that are workplace-approved) that could put information at risk and/or impact litigation and investigations efforts should discovery be involved. Document management mandates may need change or be supported in new ways. Teamwork and workflows are likely disrupted, including those requiring approvals and signatures, so ongoing evaluation and oversight is necessary to ensure that processes still work effectively under the new circumstances. Both hiring and exit strategies for departing workers may need to be revisited as corporate asset and data collection efforts can no longer be done in person. Both identifying potential areas of weakness and finding ways to fortify them are important for in-house legal and HR teams to consider.
Legal outsourcing and vendor relationships
With many budgets cut, the pressure to reduce costs could impact corporate relationships with outside counsel, and both of those with alternative legal service providers (ALSP) and other third parties. In-house counsel that have been reluctant to consider new technologies may find this an opportune time to revise their thinking, whether that means bringing more work in-house or engaging help from outside. Now may be time to rethink outsourcing possibilities, either temporarily or for the long haul, especially as fee arrangements by external providers may be undergoing revision; however, according to a recent EY survey, there may some reluctance to make changes during a time of upheaval, especially when it comes to legal managed services.
Fortunately, there are plenty of options to go around, but it will demand significant and informed resources to even consider the potential changes that might be made; given the fluidity of the pandemic situation, it is best to avoid making any major decisions in haste.
Many legal workflows, especially those requiring manual or in-person processes, may need to be revised when offices and off-site locations are closed. Document review teams housed in a central location are no longer feasible, for example, so technology-assisted review, already in use by many companies and law firms, may find heightened adoption. Contract and payment workflows may also be affected, leading to increased consideration of digital solutions.
Now may also be a good time to evaluate the integration or modification of other enterprise workflows, or find ways to leverage new or existing processes to address different needs. Advanced analytics tools to identify PII, for example, might be leveraged for various enterprise workflows such as eDiscovery and data breach. Data categorization tools could reduce redundancies in data use and help identify ROT (redundant, obsolete or trivial data), leading to heightened workflow efficiencies and cost reductions. Such consolidated or integrated applications of technology as workflows are reconsidered could ultimately lead to cost-saving efficiencies, as well as help mitigate data risk across the enterprise.
It is anticipated that there will be a major uptick in litigation and investigations, increasing pressure on already overtaxed company resources and law firms; numbers are already on the rise. Putting plans in place for litigation and investigations readiness cannot begin soon enough.
In-house legal teams should be making plans for adjusting potential data preservation and collection efforts as well as considering, with their outside counsel how legal strategies may need to change under the current climate. Will internal investigations have to be handled differently with employees at a physical distance? Will relationships or communications with outside counsel change? Will court interactions be impacted in different jurisdictions? Will jury selection? The sooner these questions are considered, the better.
In sum, as the global COVID-19 pandemic continues to affect the ways that companies and their employees work, in-house counsel must do their best to remain attentive to the changes that are occurring, be proactive and forward-thinking in considering solutions, and find ways to adapt that will be best for their own organizations. Technology will no doubt play a major role, but the most effective solutions will take into account, and prioritize, the role that humans play as they live, work, and strive to adjust to a pandemic — and post-pandemic world.
- INSIGHT: Counsel Call for Strategic Attention to Covid-19 New Trial Dynamics, by Julia Brickell, H5 Bloomberg Law Insight
- Investigating Fraud in a COVID-10 World: A Targeted Response Helps, by Sheila Mackay, H5, Corporate Counsel Insights