Understandably, the unique coronavirus, COVID-19, has brought unique challenges to many in the profession. Often, we have found that lawyers are uncertain regarding the best way to address, among other issues, the following:
• Ethical requirements regarding communication, competence, and diligence. Even while the world is seemingly on hold, it is not. And it is important to stay current in all matters so that lawyers are not deluged once offices and courts reopen, and social distancing ends.
• Reviewing and understanding court closures and new local rules. The various jurisdictions have responded to the pandemic with different provisions based on the type of matter and where proceedings are venued. It is crucial for lawyers to understand what is possible and what is necessary to still do.
• Proactive advance planning for filings. There are often new obstacles to timely filing. To accommodate this, lawyers may need to have papers finalized more in advance of filing deadlines than they traditionally have.
• Ethical billing practices. It is natural that workflow will be impacted based when businesses and employees are forced to work in a different way, or not at all. There are steps to take to ensure that the billing remains proper and to place attorneys and their firms in the best position to continue cash flows as normal as possible.
From advising employers how to respond when an employee tests positive for coronavirus to counseling employees afraid of catching it at the office, lawyers are working around the clock to help clients navigate the uncharted legal waters sparked by the rapidly spreading COVID-19. Some law firms have created multidisciplinary task forces to assist clients, both domestic and international, in tackling the myriad challenges posed by the pandemic. These lawyers and firms are helping others at the same time they are grappling with the significant effects of coronavirus on their own operations, such as the need to close their offices and require employees to work remotely. Firms are also bracing for the pandemic’s long-term economic impacts that could boost demand for some legal services, while depressing the market for others.
Many employers have inquired about how to treat employees who demonstrate symptoms of coronavirus or have been exposed to others diagnosed with COVID-19. If an employer decides an employee cannot come into the workplace, the employer must ensure it remains in compliance with other laws that could come into play, such as the federal Family and Medical Leave Act and state/local paid sick time laws. The FMLA, for example, requires employers with more than 50 employees within 75 miles of the company’s worksite to provide employees with job-protected, unpaid leave for certain medical and family reasons. Employees who take FMLA leave are entitled to receive the same health coverage from their employers as they were before taking leave. “An employer cannot just sit by idly and watch the world address the coronavirus issues without itself addressing them internally in their workplace.”An employer plan could include these elements:
• A description of how the business of the organization will continue in the event of a temporary closure, government shutdown or furlough.
• A remote work policy that allows the continuation of operations while employees work from home.
• Additional cleaning or sanitization services, along with the provision of soap, hand sanitizer and disinfectant wipes to ensure a safe workspace.
• Continual communications to the workforce that provide up-to-date, accurate information on best practices and precautions for protecting oneself against COVID-19.
Guidance For Employees And Health Care Institutions
Lawyers who represent employees say they too have been fielding a steady stream of questions from workers about the implications of coronavirus, particularly as it relates to the safety of their workplaces. employees worried about symptoms they are experiencing—or are fearful of experiencing down the line if they remain in their workplace—to request their employers provide reasonable accommodations as required by law. “It is just a blatant violation of the law if they are not accommodating them, including [through] work-at-home situations.” Unsurprisingly, health care lawyers also have been in high demand in recent weeks. The CDC website provides a variety of resources for health care professionals and health departments caring for COVID-19 patients, including information about when such patients can be safely discharged from a hospital. The CDC also offers general guidance about how to keep workplaces safe by taking actions such as postponing large meetings and gatherings.
“This is a time for everyone to be looking at not only what you are legally required to do, but at what the right thing to do is given the information that we have,” Markey says.
Impact On Law Firm Operations
Law firms have continued assisting clients with addressing the coronavirus even as they are seeing their own operations greatly impacted by COVID-19. As a result, the firm has an internal crisis management team that is meeting regularly to evaluate risks to the business and to ensure the firm is best positioned to still serve clients. Many other firms have begun closing offices and shifting to remote working as well. “There are some things that can be done in the short term, but the firms that it is going to be easiest to deal with potential coronavirus issues are the ones that implemented cloud-based technology six months ago, a year ago or three years ago,” he says.
Preparing For An Economic Downturn
Law firms and other legal organizations also are bracing for a possible recession potentially a lengthy one sparked by the fallout from coronavirus. The cancellation and postponement of major conferences, trade shows and other large events will also generate legal work extending beyond the coronavirus pandemic. The litigation finance industry is also gearing up for a steady stream of coronavirus-related activity.
By now, everyone should be familiar with the basic protective steps defined by health authorities. However, the spread of the coronavirus has caused massive disruption and created a potential minefield for D.C. lawyers, who retain all their ethical duties under the Rules of Professional Conduct. Though there are important issues that may arise in the face of the coronavirus threat — or any other threat to life and health, for that matter — the fundamental “prime directive” remains: thou shall protect thy client. Your ethical obligations do not change, regardless of whether you are ill, your client is sick, or the courthouse is closed. Below are some basic guidelines to assist lawyers in complying with their ethical duties during this pandemic and beyond.
• In the face of increased risk of serious incapacitating illness or worse, lawyers must have a ready succession plan for other lawyers to assume responsibility for legal representations and, at a minimum, a plan for promptly communicating with clients and for taking necessary protective action. In larger firms, other firm lawyers may be able to step in to take over a representation on short notice, but even such firms should develop a contingency plan to address how client matters will be handled in the event of mass lawyer incapacity or unavailability. Assuring the continuity of representation can be more difficult for solo practitioners, where there is often no other lawyer to step in to handle cases in the event of the solo’s illness or death. As such, Rule 1.3 provides that each sole practitioner should prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client that the lawyer is no longer engaged in the practice of law, and determine whether there is a need for immediate protective action. Solos should consider partnering with each other in reciprocal agreements to advice clients and courts when the lawyer has become incapacitated or is deceased.
• One important result of COVID-19 is a reduction in personal contact between lawyer and client and, as such, potentially less lawyer awareness of the client’s health status. In this environment, attorneys may wish to ask clients to disclose developing health issues to them because a client’s illness may necessitate a continuation of the case, a waiver of appearance, or a request for remote attendance. Rule 1.4 (Communication) requires that lawyers initiate and maintain the consultative and decision-making process even when clients fail to do so. When a seriously ill client develops a lack of capacity to proceed, Rule 1.14 (Client with Diminished Capacity) provides that the lawyer “may take reasonably necessary protective action including, in appropriate cases, seeking the appointment of a surrogate decision-maker.” However, the much-preferred option is for the lawyer to determine now how the client would want the representation to be handled in the event of incapacity.
Working Remotely: Confidentiality Issue
Pursuant to D.C. Rule 1.6 (Confidentiality of Information), the lawyer’s duty to maintain the client’s confidences and secrets is extremely broad. As such, lawyers working remotely or from other irregular or nontraditional sites must carefully consider the security and confidentiality of their policies, procedures, and systems. Some obvious basics include protecting computer systems and physical files and ensuring that telephone and other conversations and communications remain privileged. Included in the mandate of Rule 1.1 (Competence) is a lawyer’s duty to be sufficiently technologically proficient to protect client confidentiality. If a lawyer working remotely lacks such knowledge, then he or she should retain a competent technological expert to advise regarding the lawyer’s security systems.
Diligence in a Constantly Changing Situation
Lawyers must be diligent in monitoring the ever-evolving COVID-19 situation, including but not limited to court closings and orders regarding filings, appearances, and statute of limitations tolling, and adapt as necessary to conform with their ethical obligations under the Rules of Professional Conduct. Coronavirus may present more than health issues, including restrictions, delays, increased costs in international transactions, labor and employment issues, client solvency issues, and risks to entire industries. Lawyers must be prepared to address all these issues, and more. Finally, the old dictum “what goes around, comes around” has ironically never been more relevant, and lawyers should exercise ultimate civility and good will when dealing with opposing counsel.
How to Ensure Your Law Firm Is Prepared for the Coronavirus Crisis
As more countries report cases of the coronavirus (or COVID-19), employers around the world have been asked to educate their workforces on how to prevent the spread of the virus. Whether you are a big or small firm, and whether you have offices overseas or not, every firm should have a disaster plan in place for the coronavirus and other types of health crises as well as natural disasters. Business continuity is of the utmost importance as is the well-being of your employees and clients, and the confidence that your clients have in your abilities despite a crisis.
Your employees should feel like they’re in good hands with management and that there is genuine concern for the well-being of everyone. The most important message to communicate internally is that they should stay home from work when they are sick and telecommute if necessary. Firms should consider making work travel optional, keep track of employees’ vacation locations (by asking them to voluntarily provide this information), ensure there is ample access to sanitizing and antibacterial cleaning products, and use information only from the Center for Disease Control and Prevention (CDC) in communications. At time of writing, the U.S. Centers for Disease Control and Prevention has issued travel notices advising that precautions be taken when traveling to Hong Kong, Iran, and Italy, due to coronavirus outbreaks in these countries. The CDC also issued travel precautions for Japan and South Korea, including postponing nonessential travel for older adults and those with chronic medical conditions. Employees are among your most important considerations, because every employee is a representative and crisis manager for your organization, whether you want them to be or not. It’s your firm’s job to ensure that they receive the messages you want them to communicate to others.
Be sure to communicate frequently to your employees to reassure them and provide them with reliable information. Establish notification systems that will enable you to rapidly reach your employees if there’s an interruption in business. Make sure you have appropriate supplies (prepare ahead), make arrangements for your employees to work remotely if necessary and develop a plan for how to run your local businesses if you need to temporarily close overseas offices. Ensure that those who answer the phones in each of your offices are well versed in what your company wants to say regarding the coronavirus, if asked by a client or another interested party. You can prepare a statement for them to read or have those calls directed to someone such as your PR leader or firm administrator. Although this is common sense, it’s important to communicate the steps that employees can take to avoid getting sick. Consider putting a quick tips document together and emailing it to employees as well as print up flyers with the information. Tips should include cleaning hands often by washing them with soap and water for at least 20 seconds, and covering the mouth and nose with a tissue or sleeve—not your hands—when coughing or sneezing. Education and communication on best practices for not getting sick are crucial during this time and also as this has been a particularly harsh flu season.
Create/Revise Your Infectious-Disease/Pandemic Management Plan
Planning for how your company can continue to operate with a reduced workforce and minimal disruption is crucial to being able to effectively deal with a crisis.
Plan how your company can continue to operate with a reduced workforce…
In terms of your Infectious-Disease/Pandemic Management plan, work with firm leaders and a trusted PR advisor to develop a detailed action plan for the continuity of operations, internal and external communication, client communication, technology, human resources, benefits, travel, matter management and office support during a potential crisis such as the coronavirus, and assemble a trusted team with clear outlined roles and responsibilities. Your internal crisis team should be small in size and consist of senior administrative leaders who oversee key areas (Information Technology, Human Resources, Administration and Public Relations) as well as lawyers, including your managing partner, a few other partners with subject-specific experience, your general counsel (if you have one), as well as your internal PR leader. If your in-house PR team does not have sufficient crisis communications expertise, you may want to retain an agency or independent consultant that specializes in this area.
When necessary, use social media and your web site to post messages about the firm’s position and actions on the virus, including any closed offices and how to reach those lawyers (and the office especially by mail). Ensure mail is being forwarded to a secure location and checked frequently – you don’t want to forget about the checks and bills that are coming in. While employers can take commonsense steps to prevent the spread of the virus, such as issuing travel restrictions, or more-controversial steps such as telling people to stay away from work during the 14-day incubation period if they are returning from regions with high infection rates, they might not be enough to prevent the spread of the disease. Employers in the U.S. should review their infectious-disease management plans. If they don’t have these plans, now is the time to create them. Employers not only have to deal with the current outbreak, but think about the fact that the virus may occur again next year.
According to SHRM, an effective pandemic plan addresses such topics as:
• Workplace safety precautions
• Employee travel restrictions
• Provisions for stranded travelers unable to return home
• Mandatory medical check-ups, vaccinations or medication
• Mandatory reporting of exposure, such as employees reporting to employers and employers reporting to public health authorities
• Employee quarantine or isolation
• Facility shutdowns
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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