“This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an exhaustive article that describes the various kinds of things that are keeping lawyers busy during the lockdown.”
Table of Contents
Introduction
The pandemic, COVID-19 has brought a drastic change in the trajectory of human lives within a few weeks. Probably for the first time in history, a lockdown due to a pandemic has forced all the businesses to shift from offline to online. One thing which is clear is that the lockdown can take away the routine of going to the office for work but it can never be an excuse for bringing the work to a still. During this tough phase of pandemic COVID-19, lawyers are still managing to keep themselves busy with the work. This article provides a gist about the things that are keeping lawyers busy during the lockdown. It is just dealing with the legal profession.
Kinds of legal work which are keeping the lawyers busy
Work from Home
The country is under a lockdown which means that all the in-house offices, law firms, Legal NGOs, etc. are closed. However, all the lawyers are working from home to prevent the disruption of services. The kind of work is the same as done in the offices. Lawyers are making agreements, researching, preparing files, drafting legal documents. The working method has changed to a certain extent because now the senior leaders have to provide a detailed structured kind of work to the juniors.
It is easier to keep a check on the work while working in an office but now to receive the desired work, double-checking, conference calls, etc. are playing a crucial role. An economic downturn is definitely expected. The lawyers are trying to provide a buffer system to the companies to prevent them from crashing down, this includes advising on various ways to reduce costs like – by layoffs, reducing the work hours and thus the income, etc.
Moreover, firms like Shardul Amarchand Mangaldas, L&L Partners, Cyril Amarchand Mangaldas, etc. have recently provided the bonus early to the employees despite the disruption caused due to COVID-19. As a concept of Management, to keep employees motivated by providing monetary benefits always helps the employees to work better. From giant law firms to boutique firms everybody is working from home.
Managing different Contracts and Agreements
It is an obvious fact that due to COVID-19, performances under various contracts and agreements will be cancelled, disrupted and delayed. Corporate lawyers are experiencing a dramatic surge in work as companies seek ways to prevent the deals they have already made from falling apart. Various companies are also seeking ways to back out of contracts. On the other hand, certain lawyers are working to prevent acquirers from backing out of Mergers & Acquisitions (M&A) deals by revising M&A documents. This has led to a drastic increase in the number of calls and client queries.
A major setback for India is that the Indian Contract Act is silent on the concept of ‘force majeure’ (an unforeseeable event or circumstance that prevents somebody from fulfilling a contract). In various countries like Germany and France, the term ‘force majeure’ is already coded in civil laws. An agreement for an ‘impossible’ act is considered as void under the Indian Contract Act; however, the inclusion of pandemic in it remains a doubt.
Another remedy can be ‘frustration of contract’ (Section 56 of the Indian Contract Act). It is a situation where it becomes impossible or unlawful to fulfil a contract after its execution. Even if the clause of the frustration of contract is not mentioned in the contract still it can be applied with regard to the Indian Contract Act as the principles of law overrides the contract. Lawyers believe some cases can be resolved whereas in others litigation is inevitable.
Every case is being handled based on its own merit and facts and whether the language of force majeure clause in the contract includes a pandemic situation. The cases are believed to spread across sectors: International Trade, Real Estate, Plant Joint-venture, Engineering, procurement & construction agreements, and M&A deals.
Once the lockdown due to the pandemic is over and things start to get restored then a huge number of potential lawsuits can be seen coming our way depending on the gravity of the matter as many contracts have already been breached unless they find solutions through mediation or negotiation. A continuous re-negotiation of contracts can be seen.
Addition in policies
Companies are approaching lawyers inquiring about adding ‘coronavirus’ clauses to their employment policies. The given policy to include sick pay leave, quarantine leaves and obligation of employers to protect their employees. Lawyers are figuring out rules about absence and sickness in case of self-isolation by the employee. Lawyers are being asked to frame a remote work policy that allows work from home while continuing operations.
The employers have various kinds of questions that are being answered by the lawyers. One such question is, for this lockdown, can the employees be asked to use their accrued annual leave? The answer to which is a no, an employee can use accrued annual leave on his will and discretion.
The lawyers are continuously working to tell the clients about various directions being issued by different government departments. For instance, the Ministry of Home Affairs has directed that no employer can deduct the income of an employee or evict workers, landlords cannot ask for rent. After RBI issued the instructions related to a moratorium on EMI, lawyers were flooded with queries from clients including banks, payees, etc.
Approaching clients via Video Conferencing
The pandemic is a curse indeed but it is providing some benefits to different groups of people. For instance, a lawyer from a smaller town is able to approach and build a connection/ relationship with a client based in a Tier 1 city in the same manner as a local lawyer, based in the Tier 1 city itself.
Virtual meetings on Zoom, Skype, etc. have made it easier, cost-effective and time-saving for lawyers to approach new clients and stay in touch with the existing ones. The void of physical availability in the office is being fulfilled by using technical tools. The tool is being used to answer the queries of the existing and new clients, helping them understand the legal implications on their businesses in the future.
Stock market
The world stocks suffered from their worst fall since the 2008 financial crisis. A continuous decline in the Indian stock market due to the pandemic is visible despite various government measures. Currently, a lawyer who usually handles work on stock market listings, or public offerings(IPOs) is nowadays being asked to provide ways to rescue deals. Recently, in the course of a joint venture of Nippon Steel Corporation and Arcelor Mittal, a $5.15 billion loan deal has been signed with Japanese banks.
Managing online interns
This time is being wisely used not just by the lawyers but also by the law students. Online internships have become a trend in the last few weeks. Along with handling their own work, the lawyers are providing instructions, research questions, reviewing the work of the interns as well. Various big law firms, in-houses have also converted the offline internships into online internships.
Lawyers are motivating young lawyers, law students to write articles, blogs, research papers, etc. and are providing them with the opportunity to get their work published at their websites, journals. Unlike LawSikho, LexLife, etc. who already have an experience of handling online interns, many companies including the giant law firms are new to this concept.
Urgent Matters
Various High Courts and Supreme Court have issued a notification stating that extremely urgent proceedings may be conducted online via video conferencing. For instance, the Registrar General of Calcutta High Court issued a notification describing the procedure to file cases for urgent hearing and filing of the cases, once normalcy is restored. The litigators are working on their petitions as scanned copies have to be sent to the Registry for urgent hearing via email.
The whole process of e-filing of petitions, documents, replies from lawyers, intimation from the registry about the hearing dates via email, etc. has kept the lawyers busy. Insurance-related disputes are taking a high jump and are expected to go higher as the number of cases is increasing on a daily basis.
For instance, on 29th March Punjab & Haryana High Court heard a matter via video-conferencing relating to an order of the administration of Chandigarh Union Territory dated 27 March 2020 which allowed the opening of shops selling essential commodities. The court upheld the decision of the Chandigarh administration stating it was issued for the larger public interest.
Arbitration Proceedings
Arbitration is proving to be an effective solution and to prevent a backlog of cases in the future. Lawyers are conducting arbitration proceedings from their homes via video conferencing. Both international emergency Arbitration and National emergency Arbitration proceedings are being conducted with the help of technological methods.
One of India’s renowned arbitration lawyers posted on LinkedIn a few days back about how he and his team managed to get an approval for an emergency International arbitration proceeding via video conferencing under the rules of the Japan Commercial Arbitration Proceeding Association, seated in Tokyo. This is just one example, there are plenty of others.
Preparing Wills
The pandemic has caused terror in the hearts and minds of the people. People are afraid of being infected by the virus and even the risk of losing their lives. Many lawyers were approached by the people regarding the procedure of preparing the will, its implementation, registration, etc.
The process of making a will includes making an inventory of assets, then deciding who will inherit the assets and choosing a trustworthy executor. Then a will is drafted by a lawyer, followed by the execution of the will and having it attested by two witnesses. If required, it can be registered; however, it is not compulsory to register the document(will) under Section 17 of the Registration Act, 1908. A recent article on the website of Cyril Amarchand Mangaldas also talks about the increased demand for preparation of the wills and other succession matters by the clients.
Human rights
Various Human Rights NGOs and legal NGOs are continuously working to protect people’s rights from being violated. The recent cases of stigmatization of individuals and a rise in vigilante violence have caused alarming situations for a human rights lawyer. The recent incidents where people were forced to hold the placard stating that I am an enemy of the nation because I will not stay at home, has increased the threat of arbitrarily punishing the people and public shaming them.
Various cases of discrimination against airline workers and healthcare workers have also come to the notice. Lawyers are working on the matter to defend such people from the offence of assault. Many lawyers are asking the State to arrange for food, shelter and medical facilities for migrant workers.
Webinars, Podcasts and Interactive Seminars
There is nothing better than being able to give back to the world. Many lawyers are using this time to share their knowledge about various topics. LawSikho, Legalfoxes, etc. are conducting webinars by inviting different lawyers for different topics. The purpose behind it is to share their knowledge, expertise, experience, and learnings with young lawyers, law students and the rest of the world. Law firms have ramped up the production of digital media methods for information provisions- podcasts, webinars, and other interactive sessions. In some places, it is being done to actually meet the client demand and at others to compete with fellow firms.
Polishing their legal skills
Many lawyers are using this time to polish their legal skills, either by doing some diploma courses, certificate courses available online or revising the old concepts, joining various webinars as an attendee, working on technology contracts.
Writing articles, research papers, books, etc.
Many lawyers are utilising this time to get into the writing business other than just the petitions, contracts or agreements. Almost all the big firms like Cyril Amarchand Mangaldas, JSA, AZB, etc. have created a separate column about the COVID-19 on their official websites where they post regularly different articles, news or other pieces of writings to keep the clients and people updated about the legal situation. Many lawyers are writing blogs for different sources, some are writing their research papers. Earlier also lawyers used to do this but the only thing that has changed is the extent and increase in the number of writers.
Conclusion
Making the most of this time is necessary to keep the future conditions stable. What the future holds is very uncertain at the moment. Whether the lockdown will be extended or not? However, looking at the situations in various affected countries suggest that it is not ending anytime soon. The things mentioned in the article are more or less equally applicable in and outside India especially in countries like the USA, UK, France. A lockdown due to a pandemic can stop you from going to the office but it can never be an excuse to stop working for the company or on yourself.
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