By Nicole Hyland, Tyler Maulsby and James Mariani
The COVID-19 pandemic has upended the legal industry. Until recently, law firms have maintained a largely face-to-face business model. In New York, for example, courts have generally required in-person preliminary conferences and compliance conferences, despite their relative inefficiency in comparison to telephone or video conferences. When important documents are signed and notarized, everyone traditionally gathers in the same location, even though it would be more convenient and cost-effective to notarize documents remotely. Lawyers have a reputation for being inept with new technologies and resistant to change. Those stories you hear about law firm partners who read their emails on printouts handed to them by their assistants are not apocryphal – that really happens. Practically overnight, this has all changed. As an increasing proportion of the population is sheltering in place, law firms are being forced to adapt to a remote-work environment. This new order is placing an unprecedented burden on law firms’ technological capabilities. As if that were not enough, lawyers – like many others – are juggling new challenges, such as educating and entertaining children whose schools and parks have been shut down. Add to all this: the psychological effects of social isolation; stress over economic uncertainty; shortages of food and other essentials; and a range of emotions in response to media coverage of the pandemic. These stressors can build up over time, creating unfortunate opportunities for lawyers to make mistakes – which can lead to negative outcomes, such as unhappy clients, loss of business, malpractice liability, and even disciplinary proceedings.
Here is the good news. As lawyers, we are trained to handle new problems and help others do the same. Below are some tips for avoiding errors and ethical violations as we all muddle through this crisis.
Create a Crisis Plan
Rule 1.1 of the New York Rules of Professional Conduct (“RPCs”) requires lawyers to provide competent representation to their clients, including technological competence. Having a plan during this crisis is essential for meeting your duty of competence to your clients. Since we are well into the COVID-19 crisis, many of you have undoubtedly created a crisis plan. If not, however, it is not too late. Take some time to sit by yourself or confer with your law firm partners over video conference and map out a plan for getting through this crisis.
Here are a few items that you may want to include in your crisis plan:
- Form a crisis team and delegate authority to act quickly as the situation develops
- Develop specific policies to respond to the crisis, such as remote-work practices, travel policies, reporting requirements if exposed to COVID-19, enhanced IT helpdesk procedures, improved information security safeguards, emergency alert protocols, etc.
- Monitor daily developments regarding the crisis, such as emergency executive orders, changes in court procedures, filing deadlines, federal and state aid for businesses, etc. You can find regular updates on the latest COVID-19 developments here
- Make sure attorneys and staff have up-to-date information about the crisis including the firm’s policies as they evolve
- Know where your lawyers and staff are and how to contact them
- Assess your law firm’s operational and technological capabilities including how full-scale remote work might require updates or changes to capabilities (e.g. do employee devices have sufficient security features enabled)
- Determine whether you need to make additional technology investments to ensure that you are able to meet obligations to the firm’s clients and incentivizing good information security practices
We prepared a detailed crisis planning checklist, which is available here.
Protect Client Information and Property
RPC 1.6 requires lawyers to protect confidential information from both intentional and inadvertent exposure. In addition, RPC 1.15 requires lawyers to safeguard client property. In this new teleworking environment, lawyers may need to adopt enhanced measures to protect client information and property, including:
- Ensuring that remote work spaces and devices are secure
- Using appropriate password protection, two-factor authentication, and encryption for devices
- Disabling smart speakers and other AI devices when having confidential conversations
- Ensuring that lawyers and staff are properly trained on new or unfamiliar technologies
- Using secure conference video and call software and practices
- Instituting a firm-wide data security policy with appropriate safeguards
- Learning and training personnel to identify and avoid cybercrimes, such as phishing, ransomware attacks, escrow and wire transfer scams, etc.
- Regularly monitoring law firm escrow and operating accounts and understanding insured claim requirements
- Understanding the law firm’s insurance policy and implementing any operational requirements necessary for data security claim coverage
Maintain Effective Communication with Law Firm Personnel
Law firms, managing partners, and supervising attorneys each have duties to supervise other lawyers and non-lawyer personnel to ensure that everyone at the firm is complying with their ethical obligations. See RPC 5.1-5.3. Supervision is challenging enough when lawyers and staff are working together in the same office. These challenges increase exponentially when law firm personnel are working remotely from multiple locations. Here are some tips for maintaining effective communication with lawyers and staff during this time:
- Try not to rely exclusively on email when communicating with law firm personnel. Pick up the phone and call people to check on how they are doing. Use video conferencing once in a while, so you can see each other’s faces. It’s also fun to get a peek into your colleagues’ teleworking environments, check out their wall décor, and occasionally see their cats walk across their keyboards.
- Management should communicate regularly with lawyers and staff regarding the law firm’s evolving polices, updates on the crisis, reminders about good teleworking practices, and any other relevant issues
- Encourage practice groups within the firm to establish regular check-ins by telephone or video conference
- Senior lawyers who are in a supervisory position should check in regularly with junior lawyers and staff
- Conduct remote training sessions on technology, teleworking best practices, as well as developments in the law
- Send email reminders about best practices
- Remind lawyers and staff to stay current on timekeeping and billing
- Make sure that lawyers and staff are reporting exposure to COVID-19 or any diagnosis
- Have a plan for covering work if a lawyer becomes incapacitated due to illness or for any reason
Maintain Effective Communication with Clients
RPC 1.4 requires lawyers to communicate with their clients regarding material developments and keep clients reasonably informed about the status of their legal matters. In addition, RPC 2.1 requires lawyers to render candid advice to clients. RPC 1.14 is a special rule that offers guidance to lawyers who represent clients with diminished capacity, which is particularly relevant during this time, as some clients may become exposed to COVID-19. As we adapt to new modes of communication during this crisis, lawyers should implement additional measures to ensure that they are complying with their duties of communication. Here are some tips:
- Make sure you have current contact information for your clients
- Determine the best way to communicate with each client. For some it will be email. Others may prefer telephone or videoconference. Consider each client’s comfort-level with technology and be flexible
- Inform clients of any aspects of your teleworking plan that may affect the representation
- Update clients on changes in the law that may affect the representation
- Adjust client expectations about time-frames, results and strategy
- Explain to clients that additional courtesies to opposing counsel are appropriate during this time
- Have a plan in case your client becomes incapacitated or stops communicating with you
Practice Self-Care and Seek Help for Stress
While it is important to have a crisis plan for your law practice, it is equally important to have a plan for your personal well-being. The plan will be different for each of us, but should probably include some combination of exercise, good nutrition, sufficient sleep, human interaction, entertainment, and individual “me time.” As you shelter in place, make sure you are incorporating some or all of these elements into your daily routine. Also, practice kindness and patience with yourself and others. If you are struggling emotionally or psychologically, the ABA has posted a helpful list of mental health resources for lawyers here.
As this crisis develops, lawyers will face many unprecedented challenges in their law practices as well as their personal lives. We cannot predict all of these challenges, but we can try to anticipate and plan for many of them. Planning and implementing some of the procedures discussed in this article should help lawyers comply with their ethical obligations and minimize the risk of errors.
Having a plan during this crisis is essential for meeting your duty of competence to your clients.