WhatsApp: Convenient but has its risks
WhatsApp has become the “preferred communications tool” for law firms handling asylum work, but most lack a “clear, written usage policy”, the Solicitors Regulation Authority (SRA) has said.
A review of 25 firms by the regulator also found that 17 of those in charge of asylum work who were also compliance officers for legal practice (COLPs) “had not read” the SRA’s warning notices and guidance on immigration law.
The SRA visited the firms for a thematic review – five of which were also visited as part of an immigration thematic review in 2022 – and spoke to the head of department and a fee-earner, and reviewed two files they handled, as well as two handled by a consultant if the firm had one, a total of 64 files.
The overall picture was of firms taking “a proactive approach to working with prospective clients to consider the merits of a potential asylum claim”, both in terms of advising them clearly on likely evidence required and having measures in place to scrutinise the authenticity of client identities and evidence.
Firms visited by the SRA rejected, on average, around 10% of cases brought to them.
WhatsApp was typically used by the firms to update clients about the progress of their case and to share administrative details, with clients using it to send evidence.
While WhatsApp was “a convenient way of meeting clients’ needs”, the SRA “noted that firms had not fully considered” the implications.
“For example, most firms lacked a clear written usage policy for fee-earners about whether they should be using WhatsApp on their personal mobile phones to contact clients. This poses data protection risks and the potential for exploitation of vulnerable clients.”
A WhatsApp policy should cover were what fee-earners should not talk about with clients, how to keep conversations with clients confidential – especially if a fee-earner is using their personal phone – which documents should not be shared and how conversations should be saved to client files.
The SRA said most case management systems also did not automatically save messages sent via instant messaging apps like WhatsApp.
One example of good practice was a fee-earner who used a browser version of WhatsApp on the firm’s computer, meaning messages were regularly backed up to the firm’s secure cloud service account and added to the client file once a matter concluded.
Some of the heads of department who had not read SRA guidance were “aware of the key messages but only after they had read about these in the legal press”. This resulted in “some misunderstanding about their professional obligations”.
An example was thinking that client consent was always required before reporting to the regulator a matter capable of amounting to a serious breach of the rules.
The SRA described reading its warning notices and guidance as “essential steps to take in fulfilling the role of COLP”.
It found different approaches to language need, with some hesitant to represent clients who did not speak the same language as the firm’s fee earners, or who did not have a sufficient level of spoken English.
“We encourage firms to adopt a client-specific approach to managing language needs and to think carefully about the proportionality of choosing not to represent someone because they speak a different language,” the SRA said.
“If faced with a client language barrier, firms ought to consider if this can be addressed by using an interpreter, or with the aid of a friend or family member. Fee earners might also explore with the client the availability of other legal service providers who might be better placed to act for them.
“A firm with a fixed policy (however informal) of turning clients away based solely on the languages they do/don’t speak risks conflicting with their professional responsibilities.
“For example, the need to act in a way that encourages equality, diversity, and inclusion (SRA principle 6). In all cases, firms should be able to justify any decision they take not to represent someone because of their spoken language(s).”
Paul Philip, chief executive of the SRA, commented: “Users of asylum legal services can be some of the most vulnerable. It’s common for many to experience stressful or difficult circumstances, and they might have little knowledge of our legal system.
“The consequences of poor legal work can be particularly severe, long-lasting and difficult to rectify. It’s welcome news that in the main, firms appear to be doing the right things.
“We urge all firms delivering asylum services to read this review.”
Leave a Comment