When we scheduled our daughter’s wedding for March 15 in New York City, little did we know how surreal the world would be by then. The wedding did happen, with a much-reduced number of guests, hand sanitizer on each table, and with the hora joyously danced with gloves on. The next day, the governor banned any gatherings, and by the time we returned home to Cleveland a couple days after that, the changes in all of our every-day lives had taken hold.
Now we seem to be getting ready to start cautiously emerging into what everyone is calling the “new normal.” What will it look like in terms of continuing to practice ethically and managing professional liability risk for you and your firm?
Malpractice-claim “upswell” to come
First, what are the stakes? Many things about our future professional lives are unknowns, but if past tumultuous national events are a guide, there will likely be an uptick in grievances brought against lawyers, and likely a decided increase in the number of legal malpractice claims asserted against lawyers and firms.
The public health crisis has of course created potentially ruinous economic hardship for numerous clients, both businesses and individuals. As the Great Recession taught us, the economic situation will result in many different kinds of litigation, and when deals go south or when underlying litigation does not turn out well, clients very often blame their lawyers, whether it’s justified or not.
One malpractice insurer has noted that during a recession, and for the three years following, there has historically been a spike in paid claims, a number that typically doesn’t recede until five years post-recession. “In addition, and looking back at the events of 2008 specifically, legal malpractice insurers experienced a spike in paid claims above $10,000 that ranged from 35% to 41%.” Bar committee chairs note the same possibility of an upcoming “COVID-19 legal malpractice upswell.”
Keeping safe, minimizing risk
Here are five things you can do to try to reduce your risk of being on the wrong end of an ethics grievance or a malpractice complaint as we tiptoe toward the “new normal:”
- Stay in your lane: We’ve noted before that when times get lean — as they are going to become for practitioners in many areas — the temptation is to take all the business that comes in the door. If you are a solo or in a small firm, beware of this tendency, because “dabbling” can raise competence and diligence issues from an ethics standpoint (Model Rule 1.1, Model Rule 1.3). Make sure you are truly able to handle a matter before you agree to be retained. Get input in the area from someone you trust, so that you don’t fall into the trap of not knowing what you don’t know.
- Keep the calendar: Year after year, missed deadlines are the most common source of legal malpractice claims. The pandemic produced a shifting landscape of orders on court closures, statute-of-limitations, deadline extensions and the like. Pull out all the stops on your calendaring process. Build in redundancy, using paper calendars, your e-calendar and your docket department’s calendar system (assuming you’re lucky enough to have this kind of support). Make sure that your staff — wherever they are working from — knows who has responsibility for what.
- Be on top of your game: No pressure here — but it’s obvious that developments in your substantive area of focus have changed and are changing quickly every day as the government responds to the COVID-19 pandemic. Practicing competently means staying on top of it all. Add that to the challenge we have all faced with working from home and at the same time possibly balancing a range of current life issues: kids at home, spousal job loss, family health issues.
- Document, document, document: Put more in writing. Your clients will continue to be in fast-moving situations, calling on you to move quickly, too. Speed can be an enemy from a risk-management point of view, however. At least memorialize in an e-mail what the client has asked you to do — aka the scope of the engagement. This can be particularly important if you have been directed not to do some aspect that would ordinarily be within the scope of the legal work. Also be clear about who you do and don’t represent, and communicate that in writing.
- Check in with your carrier: Your professional liability carrier can be a good source of risk-avoidance resources, and this is also a good time to check your policy provisions. And if you don’t have insurance, make sure you are complying with any ethics rules or regulations on necessary communications you need to make to clients.
Don’t forget self-care
Last, this pandemic and its fallout will continue to be grueling from an emotional standpoint. The mental health and well-being of lawyers, already widely viewed as problematic, will continue to be an issue. Take care of yourself. Reach out for help if you feel over-whelmed. Here, as we frequently post, is a link to every state’s lawyer assistance program. Here is a link to the ABA’s COVID-19 Mental Health Resource page. There are lots of other resources, too.
We’ll emerge — in some way or another — on the other side of this. In the meantime, be well and keep safe.