America is currently in the grips of the COVID-19 pandemic. The virus and prevention efforts have had major impacts on the practice of law, and may indirectly create an increased risk of liability. To reduce the risk of liability created by the current environment, lawyers should keep the following practice pointers in mind.
Monitor Cases Closely
In response to the COVID-19, most states have imposed orders requiring citizens to stay at home and limit contact with others. As a result, many lawyers and their staff have transitioned to performing a significant amount of work from home and spending less time in their offices. The adjustment to working from home may increase the risks of overlooking deadlines, losing track of cases, and a host of other management issues. The potential for liability from errors of this sort is significant.
Compounding this issue, the pandemic and stay-at-home orders have had a significant impact on court dockets. Lawyers face a confusing series of overlapping and sometimes inconsistent rules affecting their cases. Some cases have been continued or delayed, while others are proceeding on schedule. Even those matters that have been continued may have existing deadlines that are unaffected by the pandemic or stay-at-home orders. Furthermore, some courts have turned to videoconferencing in an effort to conduct proceedings safely despite the pandemic. The different layers of regulation, disruption of court proceedings, and procedural changes create a risk of losing track of cases or missing deadlines.
While each lawyer needs to tailor his case- and deadline-management system to his own needs, it is important to be aware of the case-management risks in the current changing environment, and to remain vigilant about monitoring the status of cases and existing deadlines. Lawyers should monitor orders of the Supreme Court, and policies in any court in which they have cases to ensure they do not miss out on developments that may affect the status of their cases.
Lawyers may want to visit the websites for their local bar associations, as well as the courts in which they practice, for updates regarding the status of their cases. Additionally, the American Bar Association’s COVID-19 resource page provides links to useful information. Lawyers may want to consider double-checking, or have staff double-check, case status and deadlines—even if those deadlines have been determined by case-management software—to reduce the risk of missing deadlines.
Because lawyers and their staff may be working in different places and at irregular times, efforts should be made to keep channels of communication open and to regularly communicate to ensure that important orders are not missed and that matters do not fall through the cracks. Lawyers may also want to check with their insurers for available guidance on risk management when working from home.
Communicate With Clients
Pandemic-related changes to law practice also have the potential to interfere with lawyer-client communication. Lawyers will have less of an ability to have in-office meetings with potential or existing clients, and more client communications will have to take place over telephone or by internet. For lawyers who rely on an office phone system to communicate with clients, there is a potential that calls will be missed or that responses will be delayed. Additionally, clients and lawyers who are exposed to COVID-19 may be temporarily unable to communicate while they are receiving treatment. The disruption of normal communication channels and creation of additional barriers to communication carries the potential for liability.
Lawyers should also remember that their clients may be feeling nervous or anxious due to current events and may expect their lawyer to communicate with them more frequently. The American Bar Association (ABA) has consistently recognized that one of the most common complaints of dissatisfied clients is a lack of communication or a failure to properly communicate in a timely fashion. Because the ABA’s “Model Rules of Professional Conduct” (R 1.4) requires communication between lawyer and client, communication issues also create the potential for regulatory actions that may jeopardize an attorney’s licensure and ability to practice.
Lawyers should be aware that maintaining open lines of communication may be more difficult due to the pandemic and stay-at-home orders, and should take reasonable efforts to avoid lapses in communication with clients. In particular, lawyers should regularly update clients of pandemic-related changes, particularly those that could delay or adversely affect their cases. If telephone communications are inadequate, then lawyers should consider setting up new lines of communication, including using videoconferencing software to ensure effective client communication. Lawyers who rely on office telephone systems may want to forward calls to their personal phones or give clients their personal phone numbers to ensure there are not breaks in communication.
Another consequence resulting from the rapid transition to remote workplaces is that working from home may create new risks that confidential client information will be disclosed to unintended sources. A lawyer’s family members may not be aware of or understand the nature of the lawyer’s confidentiality obligations, and the home environment is generally less private than a law office. Lawyers may also be more relaxed and casual in their home environments and take fewer precautions to preserve client confidentiality. Shredding services for confidential or privileged paper documents may less accessible or unavailable.
Despite these challenges, lawyers working remotely must still maintain the security and confidentiality of client information. Disclosure of confidential information is a potential source of liability because, depending on the circumstances, it may constitute a breach of the lawyer’s fiduciary duty of confidentiality, or a violation of the “Modern Rules of Professional Conduct.”
Depending on the law in the particular jurisdiction, even inadvertent disclosures may create a risk of waiving legal protections, such as the attorney-client privilege. Lawyers working at home should take precautionary steps to ensure that confidential client information is not disclosed. To the extent possible, lawyers should maintain secure workplaces and keep their files in a secure location. Lawyers should avoid leaving confidential information in plain view and should also, to the extent possible, treat their home working space like their law office and avoid the temptation to become relaxed or complacent about client information. Lawyers also should not forget about client information that remains physically located in their offices, and should take reasonable steps to ensure that information cannot be accessed by unauthorized persons, particularly other lawyers who share the office or employees unaffiliated with the practice.
Adaptation of technology is one result of the pandemic and pandemic-related changes to legal practice. Lawyers and legal service industries have quickly adapted to the new environment with technology. In civil practice, depositions and mediations are now frequently being conducted through videoconferencing software such as Zoom or Webex, or by telephone. While the technological changes to the law practice create exciting new opportunities, they also raise new concerns about security and confidentiality.
Comment Eight to Model Rule of Professional Conduct 1.1 states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” Therefore, a failure to keep up with technological changes creates a risk of both malpractice liability and grievances.
Lawyers should independently take necessary and proper steps to adequately educate and inform themselves about technological advances, how changing technologies directly impact the practice of law, and the risks and possible alternatives to new technologies. Lawyers must also stay informed so they can assist their clients in making informed decisions about technology in their cases. Sources of information about technology include vendors, bar association publications, continuing legal education programs, and discussions with peers. Those who maintain professional liability insurance coverage may want to consult their insurers for information about technological changes.
Plan for the Worst
COVID-19 is highly infectious. While the disruptive effects of the virus and stay-at-home orders are significant, there is also a risk that lawyers, staff members, or clients may become infected, requiring lengthy hospitalization and creating a risk of death.
Lawyers should be proactive about planning for risks created by the pandemic, including possible worst-case scenarios. Even if these risks are remote, a failure to ensure coverage can have a significant prejudicial impact on the client’s case. Lawyers should secure alternate available counsel of similar skill and ability who can appropriately represent their clients if they become unavailable because of the COVID-19 virus. Similarly, the pandemic creates a good opportunity for sole practitioners to put into place a succession plan so that clients are not left unrepresented in the event of the lawyer’s illness or death.
Lawyers may also want to consider discussing how their clients wish to proceed in the event of infection, hospitalization, or death. If a client becomes infected, then the lawyer may need to assess whether the client still has sufficient mental capacity to make informed decisions affecting the representation. In the event that a client’s mental capacity is compromised and the client cannot act in accordance with his own best interest, the lawyer should take protective measures, including potentially seeking the appointment of a conservator.