Avoiding Claims During COVID: 19 Tips for Lawyers Social Distancing

avoiding claims during COVID
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Social distancing has become the theme for 2020 – and we are only a week or so in! Current predictions suggest that social distancing may continue for months or longer in order to avoid overwhelming our healthcare system and to effectively combat COVID-19, the novel coronavirus causing a worldwide pandemic. During this time of social distancing, many law firms, lawyers, and/or staff have moved toward working remotely. While we are all fortunate to work in an industry and at a time that technology allows us to do so, we need to be mindful of potential pitfalls that could lead to ethical issues or malpractice claims. Many of these 19 tips may be obvious, but they bear repeating.

Some of this advice comes from my work in defending lawyers and other professionals. Some of it comes from personal experience. I have had to work remotely extensively even before social distancing was a thing. For example, in 2015, I spent eight weeks working from home while on bedrest during pregnancy. In 2018, I spent six weeks working from home after throwing out my back. And during a hurricane, many Floridians, like me, work from home. I know the temptations that exist, but I also know how rewarding working from home can be when you get it right.

So remember: wash your hands, don’t cough on your neighbors, stock up on groceries, and work remotely in a productive, but ethical and smart, manner.

TEXTING

During this time while everyone is working from home, the temptation to text with clients will be even greater than normal. As studies have shown, the average response time to text messages is 90 seconds. It is impossible to give cogent legal advice within 90 seconds. Text messages which are usually informal, easily taken out of context, and written in “text speak,” could come back to haunt you. On the flip side, if it is the only place you are documenting advice to your client, it may not be in your files when you need it.

Tip 1:  Avoid the temptation to text clients during this time period except for administrative purposes (i.e., setting a time for a call). If a client texts you seeking substantive advice, respond that you will follow up via email, memo, or letter. In your response, make sure to include a summary of the text from the client. Follow up your written advice with a phone call if necessary.

Tip 2: If texting is the only available means of communication, make sure to think through your response, proofread it, and treat it as though it were a more formal method of communication.

Tip 3: If you have to text your client substantive advice, make sure to save a copy of the text into your client files once you are able to do so.

DEADLINES

All courts are handling the response to the novel coronavirus differently. Some have automatically stayed all deadlines, while others have only canceled hearings or trials.

Tip 4: For each and every case on which you are counsel of record, check the court’s updates on how cases are being handled. Then check that judge’s divisional instructions. Where things are ambiguous, immediately file motions to extend any deadlines you are not able to reasonably meet. Do not assume that there is an automatic stay of deadlines.

Tip 5: Many courts are moving to remote hearings. Find out what technology your courts are using and work with your IT departments immediately to get that technology up and running. Do not wait until the day of your hearing to test it out.

Tip 6: Do not assume someone else on your team is handling calendaring or calculating deadlines. You have to assume that everyone is as anxious and distracted as you are, even your usually stellar docketing team. The buck stops with you. Check your deadlines, check your docketing and calendaring to make sure everything is correct, and then recheck all deadlines weekly as things are likely going to be a moving target for the foreseeable future.

Tip 7: Do not assume someone else on your team is handling the work. When we are not in the office, we have to be even more diligent about communicating with the lawyers and staff we supervise or work with. Check in with your subordinates or superiors often.

CLIENT RELATIONS

Your clients’ businesses may be in flux. Client relations are more important now than ever.

Tip 8:  Check in with your clients to see how they want you to proceed with their representation. For example, a case which does not need to be aggressively litigated at this time might lend itself to being put on the back burner (as long as all deadlines are extended by the court, as per my previous tip) to allow the client to focus on their other business needs.

Tip 9:  See if there are any changes in law or practice relating to COVID-19 that may affect your client’s interests. For example, some jurisdictions are deferring evictions for certain periods of time. Keep up-to-date on evolving issues.

SOCIAL MEDIA

Social media has long been a lawyer’s best friend and worst enemy. During this pandemic, it has been the way most people receive pertinent information about the virus and other news. During social distancing, it is also the way most people are remaining connected with friends and family. The same pitfalls lawyers face with social media outside of a pandemic are only amplified during this time period.

Tip 10: Don’t put anything on social media you would not want your entire firm, bar association, bench, opposing counsel, and of course, dear grandma, to see. What happens on Facebook, does not stay on Facebook. It haunts you for the rest of your professional life.

Tip 11: Avoid the temptation to provide off-the-cuff legal advice on social media. The coronavirus is causing many novel legal issues to spring up. For example, how do parents on custody-sharing plans handle those during social distancing. I am not a family lawyer, so I cannot even begin to answer that question. But, even if you are a family lawyer, avoid the temptation to inadvertently create an attorney-client relationship by responding to a legal question on social media. Instead, refer the person to someone who is licensed in their state and who practices in that specific area.

DISTRACTIONS

Many of us who are working remotely at home have children who are out of school for the next month, and even some through the end of the school year. Children may require a lot of attention that you are not used to having to give when working in the office.

Tip 12:  Avoid multitasking. It is not effective and it will lead to mistakes. If you need to spend time with your children or other family members, do it. Try to come back to your work when your kids are occupied or sleeping. Get deadlines extended if you simply cannot get the work done.

Tip 13:  Turn off the TV. Everyone thinks that they are able to do document review or research with mindless TV on in the background. It is not true. If you are doing that, you are likely to miss something important. It is not fair to your clients to give less than 100% of your attention to the work you are doing. Netflix will still be there when you power down your work for the night.

ROUTINE & WORKSPACE

Working from home requires discipline. It is not always easy to work when you look around your house and see spaces that require cleaning, laundry that needs washing, a TV that needs watching, or food that needs eating.

Tip 14:  Create a routine. Set times that are going to be exclusively dedicated to work. For example, 8-12 and 1-6, with an hour break for lunch to do something else. Or any other variation of a schedule which works for you. Just pick times and stick with it. Your times may have to change every day or every week, and that is okay. Whatever you set for the day, stick to it.

Tip 15:  Create a workspace. Whether it is your couch, your home office, or some other place, create a workspace with everything you need to be successful (computer, paper, pens, water, hand sanitizer, etc.). Minimize the need to wander around your house. If your firm allows, ask to take home your monitors and docking station to set up at home. Return to your set-up workspace each day.

Tip 16: If you find that there are too many distractions around your house, schedule in times to handle those. Treat household duties as you would a conference call. Put them on your calendar, and handle them at that time. Or add them to your to-do list so you know you will get to them later, but they won’t distract you from your work in the moment.

KINDNESS COUNTS

These are new, unprecedented times. Everyone is equally overwhelmed with how to achieve a sense of normalcy while being productive and staying safe and healthy.

Tip 17: Be extra nice to judicial assistants, court staff, and your own staff and team. Nobody has all the answers and things are constantly evolving. Be patient. Be kind.

Tip 18: Now is not the time to take a hardline stance with opposing counsel. You don’t know what they are dealing with. If they ask for reasonable accommodations, agree. Most of our cases are not a matter of life and death. But, for some people, the coronavirus is.

Tip 19:  Please, for the love of god, stop hoarding all of the toilet paper.

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Comments 1

  1. Katherine Brown-Holmen says:

    Great Advice!

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