April 08, 2020 Articles

Maintaining Remote Control: Six Common-Sense Tips for Telelawyers to Reduce Risk

Lawyers must remain engaged while avoiding ethical pitfalls posed by remote practice amid a pandemic.

By Margaret Monihan Toohey
Telecommuting helps lawyers serve their clients and keep the lights—or more aptly, their VPN—on in the process.

Telecommuting helps lawyers serve their clients and keep the lights—or more aptly, their VPN—on in the process.

Siri Stafford via Getty Images

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Telecommuting helps lawyers serve their clients and keep the lights—or more aptly, their firm’s virtual private network (VPN)—on in the process. As we physically distance ourselves from clients and colleagues, lawyers must remain engaged while avoiding ethical pitfalls posed by remote practice in the midst of a pandemic. Following are six common sense tips designed to reduce risks in these challenging times.

  1. Proofread, Proofread, Proofread
    It’s fair to say we are all practicing with more distractions than normal. Whether juggling brief writing and homeschooling duties or struggling to tune out the 24-hour news cycle and tune into our work, our potential to make mistakes is heightened. It is imperative that we proofread carefully and, if possible, on paper. Ask your firm about obtaining an encrypted USB or other option to facilitate secure printing from home (but be sure to shred the documents afterwards). If not possible to print, try reviewing the same document both from your computer and as a PDF on your phone. Read the document out loud with your assistant or paralegal over the phone. Beyond checking for grammatical errors and typos, we must review work product holistically to ensure that it makes sense and conveys our intended meaning. In addition to proofreading documents and emails, double-check the “to” and “cc” fields to confirm that you are sending emails to the correct recipients.
  2. Distance Yourself from Distractions
    Common sense goes a long way toward avoiding a costly and personally taxing malpractice lawsuit. While increased distractions are unavoidable in some work-from-home scenarios, we can each do our part minimize unnecessary distractions. Turn off the TV during working hours. Avoid the temptation to check emails (or, worse, social media) while on conference calls. Minimize multi-tasking and maximize healthier routines, such as changing out of your pajamas and working at a table instead of in bed or on the couch. These simple behavioral changes have proven beneficial for both our mental health and productivity.
  3. Keep Calm and Think Twice Before Sending That Email
    One of my favorite adages reads: Dance like no one is watching; email like it may one day be read aloud in a deposition. Technology glitches are aggravating, nerves are frazzled, and patience runs thin these days. A significant number of malpractice claims involve ill-advised emails in which lawyers criticize each other, their clients, or firm work product. Think hard about whether a perceived misstep by a client or coworker should be committed to writing. When in doubt, pick up the phone.           
  4. Know and Follow Firm Policies
    Attending remote happy hours and getting a peek at our colleagues’ living rooms or home offices tends to make things feel collegial and less formal. We must stay serious, however, about firm policies including document management. Now more than ever, lawyers and their firms need to be able to locate client documents at a moment’s notice. Maintaining documents—even draft documents—in the firm’s centralized document management system is essential. Relatedly, avoid having substantive legal communications via text messages, which can be difficult to preserve. Finally, remain aware of and comply with firm cybersecurity policies. Avoid using unprotected home internet servers and log in through Citrix or your firm’s VPN where possible. Unless specifically advised that personal laptops or tablets are permitted, use your firm-issued laptop for all client work. Know your firm’s policy on using personal cloud services such as DropBox or iCloud. Keep an eye out for scams designed to steal client financial information, and report any suspicious activity (e.g., a last-minute request to change wire-transfer information on closing documents) to appropriate firm personnel.
  5. Maintain Client Confidentiality
    Lawyers and staff have a duty to maintain client confidentiality. Although working in close quarters with spouses or roommates may make this more difficult, the rules contain no provision lessening the obligation when working from home. Don’t have client conversations in rooms with other people (or virtual assistants such as Alexa or Google Home) present. Ensure that client information (transaction documents, exhibit binders, billing statements) are kept in a secure location out of sight of other household members. Similarly, be careful about what others can see when you are videoconferencing—consider whether the camera will display personal and confidential information on your desk. If you use “screen sharing,” be sure to close out all non-pertinent files and avoid revealing filenames stored on your desktop.
  6. Assume Nothing
    Our new normal is anything but, and COVID-19’s impact on the legal industry changes daily and at times hourly. Lawyers have a duty to remain apprised of these developments. Many state legislatures and governors have temporarily authorized remote witnessing. A number of courts, including the U.S. Supreme Court, have granted extensions for some filings. Federal district court judges in the Southern District of Florida and Eastern District of Texas, however, have denied motions to extend discovery deadlines. Moreover, while courts across the nation initially froze dockets for all but “essential” matters, many judges are now virtually reopening their courtrooms to pending civil cases. In New York, a ban on new lawsuits remains in place, but judges will begin to hold remote conferences and hearings in pending lawsuits. Statutes of limitations continue to tick in some jurisdictions and are frozen in others, and may be further amended as courts reopen for remote practice. Bottom line, lawyers should closely monitor these issues and remain ready to respond if and when their matters are able to, or ordered to, proceed.

Finally, a bit of bonus advice. Think seriously about using potential downtime to obtain needed CLE credits and look into whether your CLE requirements have been amended or tolled.

Margaret Monihan Toohey is an attorney at Jones Day in Cleveland, Ohio.

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