Managing a Law Practice During a Pandemic . . . and After
War and Peace is well-known for being an absolute behemoth of a book. But perhaps, across the past six months, you have saved enough time on your daily commute to trek across its approximately 1,300 pages. Regardless of whether you have ever read the work, it may make sense to consider the applicability of a quote from its author, Leo Tolstoy, “Everyone thinks of changing the world, but no one thinks of changing himself.”
This comment may have particular meaning to lawyers. We are a group who is often motivated to enter the profession because it is one where individuals can have significant influence. Impacting the societal rules we live under—and thus changing the world—is one of the many virtues of practicing law. But the legal profession is also notoriously slow to change. To find an example, one needs to look no further than California statute, which still defines the duty of confidentiality using language that David Dudley Field drafted in the middle of the nineteenth century.
But 2020 has been an unusual year. Yes, we continuously face new challenges. But it has been a century since the last pandemic. And that may have jump started a significant change. Many lawyers have learned how surprisingly effective they can be at the core aspects of their work outside commercial office space. But it is important to remember that lawyer’s ethical obligations have not changed. So, we should consider how remote arrangements—whether temporary, or perhaps extending beyond the pandemic—may present different challenges to our familiar obligations, and how lawyers may address them.
Confidentiality concerns when working remotely
As alluded to above, the duty of confidentiality is far from a new concept. But context matters. Although lawyers may have worked remotely from time to time before mid-March, chances are that the frequency has changed and they approach the process differently now, perhaps with an increased focus on physical comfort given the extended duration of remote work. But lawyers should also consider the increased likelihood that others will be around while they are working and should consider taking appropriate steps to address that.
Of course, lawyers should be working through services that are password protected, behind firewalls, and likely require access to a virtual private network. In short, they should be taking the precautions to protect information from being lost in a security breach.
But there are some issues to consider regarding a lawyer’s home working environment. First, consider the ease with which those you live with may view the papers or the screen you are working on. Ideally, use a room that only you will have access to. If that is impossible or impractical, then take other measures to protect the work. That may include getting a privacy screen, storing papers in secure locations, and positioning yourself where there is the least amount of foot traffic behind you. And regardless of how much access others may have, turn off work computers when you are not using them—and use work computers only for work.
Second, consider your environment when having confidential conversations. Your home may not have the same insulation as commercial buildings. And unless you happen to live with a work colleague, it is not okay if the person in the next room hears the conversation. This could mean having some noise reduction insulation in your work area, using headphones rather than speakerphone, and making sure that other members of the household are not in the same room when you are discussing confidential matters.
This may be one of the most challenging aspects of a law practice to do well remotely. But it is possible to do well. Physical distance does not mean we cannot communicate. Check in. Regularly. Understand what your associates, paralegals, and support staff are doing. Make sure they know to ask you questions. Perhaps consider using collaboration software that facilitates quick communications and sharing—Teams is great, but there are also free options, such as Slack, HeySpace, Wire, and many more. And examine their work product. Make sure that the output matches what you would expect given the time expended on it.
And provide feedback. Keep the lines of communication as personal as possible. Work to preserve, as best as possible, the dynamics you enjoyed when you were able to look at them face-to-face.
New client interviewing and screening
This issue may present a real exercise in restraint. With prolonged restrictions in place, some lawyers have experienced a significant downturn in calls. There have been other practice areas which naturally address issues that may arise out the recent circumstance, such as landlord/tenant, employment, financing, and corporate disputes. Lawyers in other practice areas, who may have fewer clients knocking on their virtual doors, may be tempted to sign any clients who are interested in engaging them. Both groups should exercise restraint.
The last economic downturn resulted in significant growth of legal services surrounding loan modifications. Whereas this was a successful extension of services for some lawyers, others discovered that the work led to a high incidence of claims and bar complaints. You should remember to vet potential clients just as stringently now as you always have. After gathering sufficient information to run a conflict check, assess whether the problem is one you are competent to address, whether the client’s goals are reasonable and achievable, whether you can effectively and timely communicate with the client, and whether the client’s and your personalities will mesh together.
Though placed last in a list that can be much longer, this may be one of the more crucial elements. Part of lawyer competence involves having the physical, mental, and emotional ability to represent clients. The first part is fairly straightforward. When our bodies are sick, we do not function as well as when they are healthy. That does not mean lawyers cannot ethically provide services when they have a common cold. But it does mean they should consider the extent to which any malady they have may impact their work. A great way to work toward physical health is to respect the orders the government issues in relation to the pandemic.
Of course, mental and emotional health both have the same potential to affect services being provided. Lawyers are social creatures too. Heed Robin Meade’s advice and remember that physical separation should not mean social isolation. Find ways to interact with family and friends, including those you live with. With the need to plug in more for work, consider disconnecting from electronic devices more in your recreational time.
Over the last few months, social media has been filled with posts decrying 2020—which has had more tragedies than just a deadly virus with no cure. For those who may feel overwhelmed with what has transpired, Tolstoy may also offer some encouragement, “There is something in the human spirit that will survive and prevail, there is a tiny and brilliant light burning in the heart of man that will not go out no matter how dark the world becomes.” Indeed, one of the bright spots of the year may be the opportunity to learn that we need not be tethered to an office desk to effectively represent our clients. We just need to consider and adapt to our new environment.
David M. Majchrzak practices in the area of legal ethics and litigation of professional liability claims at Klinedinst PC. He can be reached at firstname.lastname@example.org.