The COVID-19 pandemic has upended the legal profession. Before this life-altering health crisis, most law firms maintained face-to-face business models. Courts generally required in-person preliminary and compliance conferences, despite their relative inefficiency in comparison to telephone or video conferences. When important documents were signed and notarized, everyone traditionally gathered in the same location, even though it would be more convenient and cost effective to notarize documents remotely.
In the last several months, this has all changed. Many law firms have been forced to adapt to a remote-work environment. This can place an unprecedented burden on law firms’ technological capabilities. As if that were not enough, lawyers – like other people – are juggling new challenges, such as educating and entertaining children whose schools will be conducted online this fall. Add to all this the psychological effects: stress over economic uncertainty and a range of emotions in response to media coverage of the pandemic.
These stressors can increase 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.
There is some good news. Lawyers are trained to handle new problems and help others do the same. Many lawyers have figured out ways during the pandemic to effectively implement a continuity of operations, better understand technology tools, and best navigate evolving court rules and client expectations.
Maintaining continuity might be the biggest challenge. The pandemic forced lawyers to do this suddenly rather than gradually. Brent Hoeft, of Hoeft Law LLC, Madison, has operated a web-based law practice for many years and also focuses on technology use, security, and ethics in law firms. He says continuity in your law practice is not only necessary but achievable.
“So much is about maintaining routine and finding ways to do that from home. Some things are as simple as getting up at the same time as if you were going to work, getting dressed in clothes you might normally wear to the office, and setting up a designated spot in your home where only work happens. With many people having other family members home as well, it not only provides a personal psychological cue that it is work time but it also gives a nonverbal signal to the family that it is work time and that interruptions should be kept to a minimum.”
Technology can also help to keep continuity when shifting to working from home. To keep in touch with firm members, videoconferencing and team messaging apps can help.
Videoconferencing: Hoeft suggests having a morning check-in with firm members. This allows everyone to brainstorm over client matters as well as talk about what worked the day before and what didn’t and how things can be improved. He says, “The face to face of videoconferencing helps to maintain the team atmosphere for a firm. It helps all members to be able to see and interact with each other and prevents anyone from feeling like they are out on an island during any of this.”
Team messaging apps: Messaging apps are a great way to quickly communicate either one to one or more broadly with firm members to keep all necessary people in the loop on matters throughout the day. “When smaller issues arise that don’t necessitate making a phone call or videoconference, sending a message via messaging apps like Slack, Microsoft Teams, Yammer, [or] Chat in GSuite is great,” Hoeft says.
If your firm has Office365’s Business Premium program, you can use the Teams software to do messaging, videoconferencing, and more.
In addition, having a way for all employees to access client files is very important.
Hoeft suggests using a remote access program such as SplashTop, LogMeIn, GoToMyPC, or TeamViewer. “This way is popular because it can be easily set up to allow remote access to law office servers or personal workstations.”
Some lawyers are still considering ways to set up a virtual law office. Hoeft says one quick method is by using a web-based practice management software offering.
“There are a lot of options to choose from but some of the biggest and most established players in the market are Clio and MyCase. These practice management systems provide so many tools to keep members of your firm on the same page but also allow clients to stay up on their case and feel connected through the use of client portals …. You can do client scheduling, intake, e-signatures, secure document sharing, secure messaging, and online billing and payments, all from within the practice management system.”
Lawyers’ livelihoods depend, among other things, on the ability to preserve confidentiality and protect client information from unauthorized disclosure to third parties. Comment 8 to SCR 20:1.1 expressly applies the competency requirement to the use of technology and states “[t]o 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 ….”
According to Hoeft, things to consider in taking all reasonable efforts to protect against disclosure include the following:
Always perform due diligence about any software or service that you are thinking of using as a tool for working from home. There are many options, and the levels of security taken by these providers can vary greatly. If possible, try to stick to services that are geared toward business rather than personal use and, if you can, find some that are designed for use by lawyers and the legal industry.
Always use a virtual private network (VPN) when connecting to the internet even while on your home network and doing business online. There are a lot of options out there. There are also a lot of review sites that are quite helpful in selecting a VPN. The main thing is to choose a commonly used VPN and always choose the paid version. The free accounts of even good VPNs are not reliable and can be very slow.
Before starting to use a tool, lawyers must understand the tool and its default settings, which setting options are available to ensure the tool is as secure as possible to use in a law firm setting, and how to change the settings.
Wisconsin Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing concludes that “cloud computing is permissible as long as the lawyer makes reasonable efforts to adequately address the potential risks associated with it.”
Hoeft says there are only two alternatives for firms of two or more people that plan to work remotely: 1) software that allows gaining remote access into the computer or server in your physical law office and 2) web-based practice management systems. In Hoeft’s opinion, the latter is the way to go, but, he notes, many firms cannot easily switch to that option in the short term.
As for using a separate computer at home for work, Hoeft says, “I would absolutely recommend using a separate computer for work and personal use, if possible. The more personal things you do on the computer like email and social media, the greater the risk of things like phishing, ransomware, viruses, and malware to get onto the system.”
The same cybersecurity risks that are threats at the office exist when working from home. Hoeft says that such threats have increased in frequency during the pandemic.
“The focus of hackers has been the people in the organization, or in the case of lawyers, the firm. People are looked at as the weakest link in the security chain. Humans can be tricked, manipulated, and distracted. Hackers understand the psychology of humans and are quick to take advantage of externalities in the world to leverage against people to prey on their fears, anxiety, and unfamiliarity with the new way to operate business.”
According to Hoeft, the pandemic has led to many phishing scams focusing on people’s desire for information about what is going on with the virus. Hackers are spoofing authoritative agencies such as the World Health Organization and the Centers for Disease Control and Prevention to trick people into clicking links and opening attachments that are then compromising their system in some way. There also have been scams in which information about stimulus checks is used to tempt people to click on links or attachments.
“Additionally, the huge increase in the use of Zoom for videoconferencing has not gone unnoticed by hackers. They are targeting businesses through fraudulent videoconference invites that will either take you to fake landing pages meant to steal your login credentials or launch ransomware attacks. There also has been a huge increase in the number of domains that have been purchased over the past couple of weeks that have domain names that are very similar or that could easily be mistaken for a legitimate Zoom webpage domain. [It is likely that] hackers are buying these domains to use in connection with phishing campaigns.”
Hoeft says the best way to stay on top of phishing and ransomware is to make sure your staff is educated and trained on cybersecurity awareness, so they have the tools to spot these threats.
He also recommends using a VPN, “both while you are trying to access your law firm server via remote access software but also when you are doing anything else online. For privacy and security reasons you should be connected to a VPN while you are on the internet.”
Hoeft also encourages lawyers to have antivirus software installed and updated. In addition, he says, “Make sure you update the operating system [and other programs] as soon as security updates come out. … Stay on top of [software updates because] many of the updates may be patching security holes.”
Hoeft reminds lawyers to keep track of what is and isn’t working well during the pandemic and regularly discuss the topic at videoconference meetings with your firm’s lawyers and other staff. “Some things may not be able to be implemented for the short term but still make notes of these so you can change the way you do things in the future…. Much of what we’re doing now will become [or] has become permanent. So look to the future when determining how best to maintain your law firm operations.”
If you do not have written law firm operation policies, both for “normal” times and for crises and emergencies, now is the time to create them. Hoeft says, “These include work-from-home policies, information-security policies, business-disaster policies, and security awareness and training policies. They are all good to have so everyone in your firm knows where to turn to in a crisis rather than everything being done in a reactionary way.”
Unfortunately, we all had to react quickly in March when the pandemic hit in the United States. For lawyers, resuming and continuing good work means maintaining great client service, having sound technology security, and being as efficient has possible, even during these highly unusual times.
Maintain Effective Communication with Law Firm Personnel
Law firms, managing partners, and supervising attorneys each have duties to supervise lawyers and other personnel to ensure that everyone at the firm is complying with ethical obligations. See SCR 20:5.1-5.3. Supervision is challenging enough when lawyers and staff are working together in the same office. These challenges increase 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 videoconferencing sometimes, 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.
Ask managers to 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 to establish regular check-ins by telephone or videoconference.
Ask senior lawyers in supervisory positions to check in regularly with junior lawyers and staff.
Conduct remote training sessions on technology, teleworking best practices, and legal developments.
Send email reminders about best practices, such as staying 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 other reason.
Maintain Effective Communication with Clients
SCR 20:1.4 requires lawyers to communicate with their clients regarding material developments and keep clients reasonably informed about the status of their legal matters. In addition, SCR 20:2.1 requires lawyers to render candid advice to clients. SCR 20:1.14 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 might contract COVID-19. During this crisis, lawyers should implement additional measures to ensure compliance with their duties of communication. Here are some tips:
Keep clients’ contact information up to date.
Determine the best way to communicate with each client, that is, email, telephone, or videoconference. Consider each client’s comfort level with technology and be flexible.
Inform clients of any aspects of your teleworking plan that might affect the representation.
Update clients on law changes that might 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.
Plan how to respond if clients become incapacitated or stop communicating.
Practice Self-care and Seek Help for Stress
As important as having an emergency plan for your law firm is to have a plan for your well-being. The plan should probably include exercise, good nutrition, sufficient sleep, human interaction, entertainment, and “me time.” Also, practice kindness and patience with yourself and others. The ABA has posted a helpful list of mental health resources for lawyers. And, you can reach the State Bar’s Wisconsin Lawyers Assistance Program 24/7/365 via its Helpline: (800) 543-2625.
Lawyers are facing many unprecedented challenges in their law practices and their personal lives. We cannot predict all the challenges, but we can try to anticipate and plan for many of them. Implementing some of the procedures discussed above should help lawyers comply with their ethical obligations and minimize the risk of errors.