RE-IMAGINING LEGAL PRACTICE IN A POST COVID-19 LANDSCAPE IN GHANA
*By Victoria Barth
My daily routine as a lawyer involves in-person contact, ranging around client interviews, conferences and meetings, constant interactions with colleagues, brainstorming sessions, and interactions with support staff—all of which are critical to the running of a successful law firm. With the declaration of COVID-19 as a global pandemic, protocols for in-person meetings with clients had to be reconsidered, with as many as possible being achieved through virtual meetings and over the telephone.
Assessing the Impact of the Coronavirus Restructuring on the Legal Profession in Ghana
Legal practice in Ghana was not exempted from the restrictions imposed by President Nana Addo Dankwa Akufo-Addo under the Imposition of Restrictions Act 2020 (Act 1012). Pursuant to powers in Act 1012, Executive Instrument 65 was announced, which imposed restrictions on movement in the Greater Accra and Greater Kumasi Metropolitan Areas. Although members of the judiciary were exempted from the lockdown, lawyers were not deemed as “essential” services to be granted an exemption. Following the President’s orders, the Chief Justice issued a press release under SCR 176; clarifying how the judiciary was going to function under the lockdown measures. While some courts were going to be functioning, and judicial staff would be working, lawyers, litigants and court users were included in the restrictions imposed. Paradoxically, it was not clear how well the judicial system would function without lawyers and litigants.
With the exception of 28 courts in the designated regions, all Registrars were to adjourn cases in this period to May and June 2020. Designated courts were mandated to deal with critical cases, classified as breaches arising from restriction orders and other criminal matters. The Supreme Court and Court of Appeal were to deal with select matters determined by the Chief Justice, while court registries were to remain open. The lockdown measures have led to changes in the legal landscape, some of which will last for a long time. From a litigation perspective, the lockdown measures largely brought litigation to a screeching halt.
The directives issued were unclear and give rise to many questions; are the pending cause lists suspended and the court mandated to deal only with these matters? Are the courts still operating as normal only with additional mandate? Have urgent/critical cases from other courts affected by the lockdown been transferred or assigned to the designated courts?
Does it mean that lawyers are still required or permitted to take on cases and appear in respect of breaches of the restriction orders and other criminal actions? Are lawyers exempt from the restrictions for this purpose? There are also serious implications for litigants who might have time-sensitive claims and it is unclear what processes have been put in place for filing and serving notices.
For lawyers in active litigation, court attendance poses a great challenge due to persistent overcrowding, unlimited in-person contact, hand-to-hand contact in exchange of documents, and conversations with clients and other court staff. As long as the courts are operative, there is an obligation to appear before the judge, despite the risks. We also had to adopt international restructuring measures ways of mitigating and limiting contact by reviewing our case list and diaries and re-organizing according to priority. We also contacted opposing counsel and agreed on adjournments where possible, and where feasible, we made agreements between counsel to limit time spent in court. Probably the least affected area of our practice is the corporate division – since most of the work is in the form of transactional advice and services, preparation of opinions and correspondence on ongoing litigation, most of which has currently paused. Most of these corporate transactions and meetings can be accomplished over the phone, via zoom, and email.
Measures to Navigate Covid-19 Changes
With the first case of the coronavirus announced in Ghana, apart from having to distance from clients, we were faced with the reality of having to distance from each other, which resulted in canceling weekly office meetings to avoid overcrowding and close contact in our offices. Our firm has had to make a quick transition to increased reliance on technology for in-house work. Work done remotely is supervised via electronic communication and virtual media. We maintained a skeleton support staff in the office to receive deliveries, processes, and complete filings. We also increased client communication and reassurance of no compromise in service provision. The Firm is organized by teams, so logistics of case management are decided on a team by team basis, thereby allowing for a minimum number of lawyers at each appearance. The key aspect of our work has now shifted to mostly taking opportunity to complete submissions due far in advance in anticipation of the workload when court resumes.
Globally, the legal profession has a reputation for being notoriously traditional, but the COVID-19 pandemic has demonstrated that when pushed, it can alter entrenched methods of service delivery and other ways of doing legal business. The challenges to legal practice occasioned by the COVID-19 pandemic, creates an opportunity for discussions across the legal and judicial professions on how to make drastic short, medium, and long-term changes to the practice of law in Ghana.
Some anticipated changes include:
1. An increase in electronic and virtual meetings and reduction in person to person contact.
2. Force an immediate addressing of the question “Is the court a service or a place?”
3. Effective digitization of the court system as the catalyst to e-justice delivery.
4. Increased competition for clients in the aftermath of COVID-19.
5. Consumers of legal services will be seeking adaptative and practical solutions from their lawyers.
6. Differentiation will become important as legal service provision falls into homogeneity, with the artificial divides between corporate departments and litigation firms dissolving.
7. Data protection and medical negligence arising out of the pandemic could become key areas of practice.
8. The increased reliance on technology could result in technological glitches increasing the potential for undue delay in litigation.
As legal practitioners are scrambling to handle these changes, we must also think of the impact of these changes on our clients. Electronic communication and digitization disfavors literacy challenged court users who may or may not have access to technology. For most of our clients, being in the presence of their lawyer sends a sense of relieve and comfort. Lawyers would have to reimagine how we meet our client needs and service delivery that effectively uses technology, yet still remaining humane and client-facing. The law firm that will thrive in the post-COVID-19 legal atmosphere must be ahead of the curve. In the inevitable digital revolution that has already been kickstarted by the pandemic, law firms need to be client centric, collaborative, data-driven and technology enabled. Several challenges lie ahead, but also great opportunities and firms that are ready to take advantage will be pioneers in a reimagined legal industry.
*The views expressed in this entry belong entirely to the author.