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Advising from Afar: Lawyering in a Time of Social Distancing

Advising from Afar: Lawyering in a Time of Social Distancing

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Within days of the coronavirus’s arrival in March, the Polish government was scrambling to react, with lockdowns, subsidies and stimulus, public health requirements, and other measures coming rapidly, on an ad hoc basis, with the need for speed making it difficult for Polish companies (and Poles in general) to keep up, and forming a patchwork of ideas rather than a comprehensive and coherent plan.

As a result, in Poland as in the rest of the world, for much of 2020 in-house legal teams – from Polish SMEs to local branches of giant multinationals – have had to adapt on the fly, working to ensure compliance with the ever-changing legislative and regulatory climate while trying to help their internal clients remain competitive in a particularly challenging economy.

Meanwhile, the relationships between the in-house counsel and the large law firms – the ways they communicate, the forms of assistance they offer – have changed as well, in some ways that are useful, and, perhaps, some that are less so.

A Flood of Client Alerts

In the weeks and months following the arrival of what became known as Covid-19 in Poland on March 4, 2020, the Polish government introduced a number of measures meant to slow the virus’s spread, including limitations on working hours for some businesses, prohibitions on others from operating altogether, and moratoria on some rent payments According to Jacek Piotrowiak, General Counsel at Inter Cars, the government’s measures could be roughly grouped into two categories: Covid-related measures, such as lockdowns, and the so-called “Anti-Crisis Shield” that was aimed at providing support to businesses to ease the resulting financial hardship.

With little time to prepare, however, those measures were, perforce, more whack-a-mole than strategic – and the time pressure sometimes resulted in not-completely-clear legal drafting. “The government was adopting and updating policies and new laws almost on a day-to-day basis,” reports Dariusz Gapski, Head of Legal at Apsys Polska, and, as a result, “very often the regulations were not clear enough.”

Seeing clients – both actual and potential – struggle to keep up with the web of new regulations, and not insensitive to the business development opportunity, Polish law firms stepped in to help, sending out a massive amount of Client Alerts, newsletters, and other emails, some carefully targeted, and some set out en masse. “’Flood’ would be an accurate description of the frequency at which we were receiving these updates,” recalls Piotrowiak.

“The newsletters are mostly sent by the law firms we already have a relationship with,” Piotrowiak says, but he receives some from firms with which his company had not had previous contact. In both cases, he is aware that the firms are using the opportunity to showcase their expertise. Although he says that he has never followed up on the messages he receives from new firms, he concedes that they sometimes serve a valuable purpose as a sort of a check-list. “I usually go through them quickly and, if I spot useful information, I forward them to one of my team members.” Still, Piotrowiak reports, the lawyers on his team, use the webpages of governmental bodies rather than summaries from law firms as their primary sources of information.

Similarly, Joanna Krawczyk-Nasilowska, General Counsel at Ghelamco Poland, reports that she hasn’t followed-up on any of those emails she’s received – and admits she doesn’t go through all of them to begin with. “Since these emails are often very general, once you have read one, there is no need to read the others.”

Lukasz Szymanski, Head of Legal at Unilever Poland, says that Covid-19 has required him to spend a lot more time with his existing panel of law firms to stay up to date. “We have been cooperating with four prominent law firms in Poland for years,” Szymanski reports. “I have been communicating with them since the pandemic broke out, a bit more than I used to,” he says. “On some days, I start with conferences at half past eight in the morning and end at five o’clock in the afternoon.” Szymanski reports that about 50% of the topics he covers with Unilever’s external legal advisors are Covid-related, and he say that his team’s workload has significantly increased as well.

Of course, Szymanski also receives many emails from firms other than Unilever’s regular advisors – but he says he found the information from others was not as trustworthy. And “sometimes the information was just copied from a government website,” he says. “That would be just a waste of time, so, after a discussion within our legal team, we decided to stick with our partner law firms and unsubscribe from other newsletters.”

Similarly, Judyta Sawicka, Head of Legal at Globalworth Poland, says that her company made the strategic decision to only review and consider alerts on policy changes received from its regular external counsel. But the useful information they received from their lawyers was not limited only to statutory and regulatory updates of significance. “Our counsel has kept us informed about the common practices the market has established with regards to the pandemic,” she reports. “That information, in addition to regular briefs on regulatory updates, has helped us make decisions about how to adapt to the new situation.”

Of course, email is hardly the only way law firms are communicating important information to existing or potential clients. Many firms have set up dedicated pages on their websites as well. “We were among the first ones to set up a specific part of our page dedicated to Covid-related updates,” says Penteris Partner Daniel Klementewicz, also sharing those pages in newsletters and on LinkedIn. “As lawyers, we are not really supposed to offer unsolicited advice to non-clients,” he continues. “However, we are very active through LinkedIn in an informal way and we have managed to convey the contents of our webpage to ones who were not our clients before.” Still, Klementewicz insists that attracting new clients was not his firm’s primary focus. “We had plenty enough work coming from our regular clients, even without attracting new ones,” he says.

If Two’s Company and Three’s a Crowd, What is 300?

Meanwhile, although advanced video call technology such as Zoom, Microsoft Teams, and Google Meet predated the pandemic, their use among lawyers skyrocketed in 2020, as counsel and clients alike scrambled to keep the lines of communication alive during lockdowns and quarantines. “Starting in March, 99% of our meetings have been handled through Microsoft Teams,” reports Dariusz Gapski.

The video component of has become, it seems, critical, as people increasingly request it even in situations when a traditional telephone call would seem to suffice. Of course, its proliferation has made it particularly useful when groups are involved, allowing law firms to organize webinars on different topics of interest to their clients. “We have participated in interesting and high-level webinars organized by, among others, Dentons, DLA Piper, Crido Legal, and Andrzej Lulka & Partners about, for example, the crucial and surprising change in Polish law regarding the relationship between lessors and lessees,” says Gapski, referring to a controversial (and, for shopping malls and business centers in particular, disruptive) new provision, which absolved lessees from paying rent for spaces of over 2000 square meters during the pandemic. “The webinars provided useful insight into the opinions of top lawyers on interpretations of the questionable new regulations.”

Marta Duraj, Head of Transactional Legal Services Office at Polenergia, agrees the video conferences can be useful. “There were some valuable webinars regarding the use of certified electronic signatures,” she says. “At the beginning, we struggled with how to use them, but it became much clearer after we attended webinars on the topic organized by Allen & Overy and Clifford Chance.”

Primarily, according to Rafal Rapala, Senior Partner at Kochanski & Partners, the webinars helped to clarify certain questions prompted by the pandemic, such as matters of restructuring or taxes. “As people strived to learn more, webinars were held almost every other day – and some were attended by up to 300 participants,” he says. “The flood of questions and remarks during the webinars was extremely high.”

Rapala points to a secondary benefit of online meetings and video calls as well. “It is a positive thing that our younger colleagues can see us online, when we are working from home in a relaxed environment,” he says. In his opinion, seeing their senior colleagues in those informal settings breaks the stereotype of dark-suit-wearing senior professionals, allowing for the creation a friendlier and closer relationship between veteran lawyers and newcomers.

Of course, not all conversations – whether one-to-one or group – can be held online, and even though most informal meetings and social encounters have been put on hold for the time being, deal-making often still requires at least some face to face contact. “For crucial transactions, where it is more efficient, we organize in-person meetings even now, but of course we follow all safety measures, including wearing masks and sitting at a distance,” reports Judyta Sawicka of Globalworth Poland.

The Future

How and whether these technological and cultural changes will affect the post-crisis world is a common subject of speculation. “Companies might push for online meetings to replace direct meetings in the future, since they have realized that meeting in-person is not always necessary,” says Rafal Rapala of Kochanski & Partners, and “by cutting out meetings of this nature, companies would also reduce their costs.” Still, he insists, however cost-effective online meetings may be for negotiating and concluding existing deals, they are not as effective for starting new ones. “Without the straightforward interaction you can have over lunch, dinner, or even just a drink, it is slightly more difficult to start new transactional projects.”

Perhaps. Either way, Daniel Klementewicz of Penteris says that “the digital tools we now have at our disposal are here to stay. As an example, we can see that transferring sensitive information via email is not very safe. So, we might be doing it via specific data rooms in the future, perhaps through the use of the blockchain technology.” Accordingly, he says, “our work will change over time, as we will have to become more tech-savvy be able to manage these new tools and services, instead of just drafting certain documents.”

By December 23, 2020, Poland had reported a total of 1,226,833 confirmed Covid-19 cases and 26,255 deaths. Still, the light at the end of tunnel seems to be closer than it has been in almost a year, and everyone is eager to return to some version of normalcy. In the simple words of Marta Duraj, “I really like working with my team, and I miss my people a lot.”

This Article was originally published in Issue 7.12 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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