AttPro AllySUMMER 2020 ◊ ISSUE 34

Back to the Future: Planning for Re-Opening Your Law Firm

Covid-19’s Anticipated Impact on Legal Malpractice Claims Spotlight on Claims: Did you know that the AttPro claims team is staffed by attorneys?

I N T H I S I S S U E : Spotlight on Claims:DID YOU KNOW THAT THE ATTPRO CLAIMS TEAM IS STAFFED BY ATTORNEYS?

The 2008 worldwide economic downturn resulted in a significant increase in the filing of not only litigation overall, but specifically the filing of malpractice actions against attorneys in the years that followed. Clients who lost money, assets, jobs, and real estate looked to others, including their attorneys, to recover that which they had lost. In the year following the recession of 2008, the number of LPL claims in the fields traditionally considered most susceptible to legal malpractice claims (real estate, family law, trusts and estates, bankruptcy, and personal injury) doubled from the previous five-year average. Now, many industry experts believe the same thing is going to happen as a result of the Covid-19 pandemic. Here is why:

First, just as in 2008, an unprecedented number of people have suffered financially almost overnight. Jobs have been lost or reduced; businesses have closed; contracts have been breached; leases have been defaulted on. As with every economic downturn in the past, a certain number of clients will undoubtedly be looking to their attorneys to mitigate their losses, regardless of whether the attorney’s conduct played any role in bringing about the loss or could have otherwise avoided the outcome. Should the attorney have advised that there was a pandemic exception to the business interruption coverage the client obtained, or that the scope of a force majeure clause in a contract or commercial lease would not be triggered by an airborne virus? Some clients may claim the attorney should have done more to protect their interests and the economic losses they suffered following a pandemic were foreseeable and reasonably should have been avoided.

Second, as shut-down orders were issued, attorneys were forced to take their practices “in house” – literally. Some did it seamlessly; others struggled mightily. Many attorneys for the first time found themselves not wanting, but having, to work from home. With entire law firms forced to work remotely, access to staff and resources became challenging, particularly for attorneys accustomed to working in an office environment. Suddenly deprived of immediate access to staff and other attorneys, as well as in person meetings, mediations, and

depositions, many attorneys found themselves struggling to operate remote platforms such as Zoom or Microsoft Teams, greatly hindering their ability to perform tasks that seemed routine when working in an office environment. These challenges could lead to mistakes caused by the sudden forced transition from practicing law in an office to practicing from home or an alternative remote space.

Third, with these uncertain economic and social times, attorneys may find themselves venturing into fields of law in which they have no prior experience. With so many clients either no longer employed, out of business, or on the brink of insolvency, attorneys may be tempted to take on matters beyond their legal comfort zone to supplement reduced fee collection and simply continue earning a living. Should a personal lawyer agree to draft a will/trust for the family of a person in dire health due to Covid-19? Should a trust and estate attorney take on a personal injury claim? They may be tempted to do so if it means keeping the lights on. But, if mistakes are made due to inexperience or unfamiliarity with the area of law, legal malpractice claims and disciplinary action may follow.

Fourth, emergency rules enacted in some jurisdictions during the pandemic tolling deadlines for filing claims will complicate the statute of limitations analysis for years to come. With no uniform policy from jurisdiction to jurisdiction concerning filing deadlines and statutes of limitations, for multi-jurisdictional attorneys, the potential variance in such

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Steve is the managing partner of Wingert, Grebing, Brubaker and Juskie LLP and specializes in legal malpractice and commercial litigation. In his spare time, he likes to try and lure unsuspecting fish out of the Pacific Ocean and into the back of a boat.

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After months of business closures, many states are beginning to slowly allow more essential businesses to open their doors. In most states, law firms will be among the first wave of businesses that are permitted to resume providing services to the public.This is a welcome development for lawyers, but one that comes hand in hand with uncertainty. After all, resuming business in the midst of a pandemic is uncharted territory, and opening your firm does not mean you will be returning to business as usual. There are a host of issues that should be considered when re-opening, not the least of which is to ensure that the health of both law firm employees and clients is protected.Safety is an important goal, but you are a lawyer, not a public health official. So, you may be unsure how to proceed. Rest assured, there are resources available to help. The “New York State Working Group Guidance on Re-Opening Law Firms” provides a useful roadmap for law firms in the process of transitioning back to the office. Although released by the New York State Bar Association, the guidance provided is not specific to New York lawyers and can be used by all lawyers, no matter where their law firms happen to be located.

By Nicole Black

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Establish a re-opening team First and foremost, you might consider creating a re-opening team. Choose a few members from your law firm’s management team who will oversee the re-opening process. This team would be responsible for establishing the schedule for the return to work and the processes that will be put in place to ensure the safety of your employees and legal clients. The transition team should work on creating a plan to address the following issues:

• Monitor oversight of the re-opening plan and implementation

• Develop and update, as needed, internal policies and procedures for the transition from remote work to the workplace

• Communicate with legal and support staff with one voice regarding the transition process, set forth clear expectations and offer firm-wide training, as needed

• Field questions or concerns

• Become familiar with federal and state statutes and programs governing office safety and human resource issues

• Develop an employee testing plan for testing employees for the virus

• Develop client and visitor policies

Conduct business safely Another issue that the transition team will need to address is ensuring that your firm has the necessary technology and processes in place that will allow firm employees to safely and efficiently conduct business in the office. Successfully balancing those considerations may involve making use of technology like cloud-based legal software and videoconferencing tools to facilitate remote work. Another important step is to begin the process of establishing revised workplace policies that address employee movement and behavior while working both remotely and from the office. Some things to consider are:

• Encourage the use of technology for remote mediations/ hearings/arguments and depositions

• No in-person meetings in the office among attorneys and support staff for at least a specified time

• Limit the number of people coming into the office at the same time

• Limit unnecessary employee movement within the office

• Specify what work people need to do in the office to attempt to limit time in office

• Implement the virtual notarization requirements to limit in person contact

• Restrict the use of office printers and copiers to avoid personal contact

Create clear workplace rules and processes The committee could create a plan for your law office that establishes safety precautions that take into account sanitation considerations, social distancing recommendations, employee movement, and client interaction. Suggestions for procedures to be implemented include:

• Create guest and visitor policies

• Establish health assessment requirements for visitors and employees

• Create processes designed to ensure effective physical distancing

• Establish plans that provide for the cleaning and sanitizing of the office throughout the workday and at the end of the day

• Installation of protective barriers where needed

• Install hand sanitizer stations inside the entrance, near the exit, near restrooms, etc., and encourage visitors to use them

• Provide wall-mounted disinfectant dispensers throughout the firm as much as possible

• Establish specific cleaning protocols – including frequency – and processes that ensure that they are regularly implemented

• Remove or block seating in common areas and conference rooms to enforce social distancing of six feet

• If possible, eliminate cloth fabric seating and use easily cleaned vinyl or leather hard surfaces

emergency rules between jurisdictions only serves to compound the risk of filing errors. As missed deadlines remains one of the top causes for LPL claims, we can reasonably expect an even greater increase in such claims in the near future. Lawyers should check local rules, orders, and other authority to ensure they do not miss the limitations periods for filing claims.

Despite Covid-19, it remains each attorney’s primary ethical duty to protect the interests of their client. Under the current circumstances, many legal experts are starting to argue this duty includes an obligation that attorneys be “technologically competent” such that they can effectively communicate with their clients, achieve their clients’ objectives while utilizing secure resources to safeguard client confidences, and in countless other ways navigate the “virtual” hurdles to practicing law during this pandemic.

An attorney’s failure to learn how to utilize the technology available to them could result in various violations of the rules of professional conduct – such as Rule 1.1 of the Rules of Professional Conduct, which requires attorneys to perform legal services with competence – as well as an increased risk of professional liability claims.

In this different world in which we now find ourselves, attorneys might consider the following to protect themselves from a potential malpractice claim:

• Stay in regular and frequent contact with your clients and DOCUMENT EVERYTHING IN WRITING;

• Stay in regular and frequent contact with your attorneys and staff;

• When communicating with your clients, ask if their objectives have changed because of Covid-19;

• Since every jurisdiction seems to be different, regularly check all levels of applicable authority – statutes, court rules, emergency rules, chamber rules, executive orders, etc. – to confirm deadlines and make sure they are met – do not assume your case is on hold;

• When video conferencing or connecting to remote servers, use secure internet connections, passwords, and dual authentication methods;

• Educate attorneys and staff to recognize phishing/hacking e-mails; and

• Take advantage of the many online resources addressing Covid-19 issues in the legal profession.

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Nicole Black is a lawyer and the Legal Technology Evangelist at MyCase legal practice management software. She is a foodie who loves to cook and a wino who loves wine.

When she’s not writing legal technology articles or speaking at events, she’s usually watching Star Trek reruns or the latest and greatest sci-fi show, seeking proof that the current mess we find ourselves in is really just a parallel universe. Can you blame her?

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• Consider building upgrades, including voice-activated controls (to control lights, for example), touchless fixtures (such as faucets, paper towel and soap dispensers)

• Leave lights on if possible

• Install motion-activated doors, lights and fixtures if feasible, and remove non-essential doors or door handles if possible

• Rethink your layout – repurpose large spaces (such as conference rooms) to eliminate shared work spaces and create distance between tight workspaces

• When possible, designate an entrance and exit to create one-way traffic flow

There is still a lot of uncertainty with the current pandemic. Although it may seem as though we are taking two steps forward, and then two steps back, establishing a strong team that creates clear workplace rules and processes can help your firm run both safely and efficiently when your office is ready to open its doors.

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ERIN MCCARTNEY, ESQ., EDITORPolicies are written by either National Liability & Fire Insurance Company, AttPro RRG Reciprocal Risk Retention Group, or National Fire & Marine and administered by Attorney Protective. All coverage is subject to specific policy terms and conditions. 2020 Attorney ProtectiveSM. ® All Rights Reserved. Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com.

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Spotlight on Claims:DID YOU KNOW THAT THE ATTPRO CLAIMS TEAM IS STAFFED BY ATTORNEYS?

Jim Cartier, Esq. has been a licensed attorney for 29 years. Jim graduated from Georgetown University and from Southern Methodist University School of Law after serving in the U.S. Army. Jim has been handling LPL claims since 1999.Victoria Hartstein, Esq. has been a licensed attorney for 16 years. Vicky graduated from Brandeis University and from DePaul College of Law. Vicky has been handling LPL claims for 3 years. Bryan Kirsch, Esq., has been a licensed attorney since 2002. Bryan graduated from Colgate University in 1999 and from University of Illinois College of Law in 2002. Bryan has been handling LPL claims since 2004.