Volunteers on furlough
LawWorks, Clinics, and other advice sector organisations are being approached by lawyers, paralegals and trainee solicitors wanting to help as volunteers during the Covid-19 pandemic. A number have been furloughed under the coronavirus 'Job Retention Scheme' and are generously looking for a positive way in which they can use their legal skills for the benefit of the community. The Law Society has published further guidance for law firms on the job retention scheme.
The Government's own guidance on the job retention scheme has confirmed that organisations can provide volunteering opportunities for staff on furlough, as long as they do not generate revenue for the organisation; it says:
"If your employee does volunteer work
A furloughed employee can take part in volunteer work, if it does not provide services to or generate revenue for, or on behalf of your organisation, or a linked or associated organisation. Your organisation can agree to find furloughed employees new work or volunteering opportunities whilst on furlough if this is in line with public health guidance."
Government guidance however is referring to volunteering in a wider sense and there may be a range of volunteering opportunities available, so a solicitor, trainee or law student can of course volunteer to deliver food parcels or similar community support, without needing to be concerned with any of the issues raised below because they are not volunteering in a professional/regulated capacity. NCVO is producing regular information and resources for organisations taking decisions about furloughed staff and volunteering.
The same general principle that organisations can provide volunteering opportunities for staff on furlough as long as they do not generate revenue for the organisation, applies to law firms, in-house legal teams and their staff undertaking pro bono. This means that potentially employees from firms and in-house teams could (subject to resources) be involved in delivering pro bono if appropriate arrangements can be made, for example to deliver advice remotely by telephone or other methods.
However, the words "linked or associated organisation" are unclear in this context, and suggest that furloughed employees may not be able to volunteer with organisations that the employer has a pre-existing relationship with; we have sought clarification on this (see below). HMRC's guidance for employees says you can volunteer as long as you’re not making money for your employer or a company linked or associated to your employer, or providing services to your employer or a company linked or associated to your employer. Whilst furloughed, your employer cannot ask you to do work for another linked or associated company.
LawWorks has obtained legal advice regarding pro bono volunteering by solicitors on furlough. The advice gives comfort that – subject to the considerations raised in this guidance - it is unlikely that pro bono work undertaken through LawWorks’ associated clinics or projects is affected. The full legal advice is below:
We therefore consider that whilst the most compliant way for furloughed staff to volunteer is through clinics or projects with which their firm has no prior involvement, taking the above advice into account there is significant scope for participating in a range of pro bono clinics and projects.
If you are an individual interested in volunteering in this way though, it is advisable to check first with your employer.
LawWorks have produced some general guidance about operating clinics in the current environment, and a specific resource for clinics moving to remote working.
Clinics, volunteers and pro bono managers should also look at the specific issues to consider that we have raised below.
SRA Standards and Regulations
All pro bono work undertaken by practitioners on furlough must of course be compliant with the Solicitors Regulation Authority’s (SRA) standards and regulations. LawWorks approached the SRA for further guidance on the ways in which pro bono work could be undertaken whilst on furlough. The SRA have produced some helpful Q and As about their rules and the impact of coronavirus, including the impact of furlough:
Where firms or in-house teams are unable to continue their involvement with clinics or provide pro bono opportunities, lawyers and trainee solicitors on furlough may wish to volunteer as individuals. This would have no impact on their employer’s use of the coronavirus job retention scheme.
Any solicitor or trainee volunteering in legal pro bono should look at what the SRA’s authorisation (AIR) rules entitle you to do.
Where individual solicitors are volunteering on their own account, they should be aware of the relevant SRA regulations practising on your own - AIR Regulation 10, and the SRA's guidance on practising on your own.
Issues for pro bono clinics and projects to consider
Where clinics are approached by individuals offering to volunteer, they need to consider whether there is any impact on their existing arrangements for:
- Professional indemnity insurance: The legal advice that LawWorks has received (see above) considers that the Furlough Scheme does not affect the insurance which would ordinarily cover a volunteer’s work; however coverage under the employer’s professional indemnity insurance would depend on the cover provided under that particular policy, and whether that policy extends to cover work that is not for their employer - that may be unlikely in practice. It will also be important to consider that where a solicitor is volunteering outside of their employment, they will no longer come under their employer’s insurance, and appropriate insurance will need to be in place (for example through a pro bono clinic). LawWorks own insurance policy can be an option, and we reviewing our guidance on clinics insurance.
- Competence: This means volunteers’ competence to deliver the service they will provide. As the Law Society's Pro Bono Manual notes, all pro bono work should be undertaken with the same degree of competence, expertise, and to the same high standard as any other legal work undertaken by the firm.
- Training and supervision: Supervision is an important requirement. LawWorks recently held an roundtable on supervision issues in line with the new SRA regulations, and are currently updating our supervision guidance and resources. The legal advice we have received (paras 62-64) considers that the way in which supervision is provided could be a relevant factor in determining whether that work is done directly or indirectly for the employer.
- Conflict checks: Handling conflicts of interest requires attention in pro bono legal advice clinics, as volunteer lawyers might have commercial or government clients in their everyday jobs whose interests may differ from those of clinic clients. With appropriate policies and systems in place these risks can be managed. We are keeping our guidance on conflicts under review.
- Letters of engagement: Pro bono engagement letters can be used to help manage pro bono client expectations. The Law Society's Pro Bono Manual provides some tips and templates on this (please note an updated version of the Manual will be available later this year). The legal advice we have received (paras 65-67) is clear that a furloughed solicitor must not engage clients on behalf of their employing firm, but may be able to engage clients on behalf of another organisation or on their own account.
- Complaints process: All forms of practice including pro bono should have a process for responding to client complaints; we are currently keeping our resources on complaints under review.
- Confidentiality: Confidentiality is a fundamental principle of legal practice; we are currently keeping our resources on client confidentiality and disclosure under review.
- Records: Keeping records, storage and retrieval arrangements. Whilst GDPR (see LawWorks GDPR resources) continues to apply at this time, the Information Commissioner's Office have issued guidance recognising that data protection practices might not meet usual standards.
The SRA Standards and Regulations guidance for the not for profit sector is a useful resource for many of the issues that clinics may have to consider in practice. Clinics will need to be satisfied that they have adequate provisions in place in order to accept offers from volunteers wishing to deliver legal advice.
If it is not practical to do so, clinics may want to sign-post lawyers and trainee solicitors towards other volunteering opportunities through your local CVS, Covid-19 mutual aid group, local authority or NHS scheme. NCVO have further details on how you can volunteer to help and support others during the pandemic.
This guidance is LawWorks’ view on the Job Retention Scheme and the considerations for pro bono as at 15th May 2020. It is not legal advice, you should read the government guidance and relevant SRA requirements before deciding how best to proceed. Please be aware of the public health guidance at all times.