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Pandemic-Proof Your Practice

As the ongoing health pandemic continues to create challenges, it’s also served as a catalyst for law firms to get serious about effective disaster planning.

By Jim Calloway

(This article was written early in the pandemic and was published in the Big Ideas issue of ABA Law Practice Magazine in July 2020. Since it was written very early in the pandemic, some items are now obvious and others now appear dated. Even the title is a bit cringe-worthy. But the idea that our business continuity plans often paid little attention to epidemics and should at some point be updated with lessons learned )

The world has changed with the outbreak of the novel coronavirus (which causes COVID-19). Hopefully we never again experience a pandemic like that which we have seen, but the pandemic could be the impetus that will result in law firms getting serious about having up-to-date, effective disaster plans in place considering the lessons learned this year. A disaster plan is always important and helps with floods, errant sprinkler systems, hurricanes or wildfires that force employees out of the office; however, there are some law office planning considerations unique to pandemics.

CRITICAL DISASTER PLAN TOPICS

 One thing is clear in light of COVID-19.  Law firms of all sizes need to have disaster plans that include consideration of how the firm will continue to operate remotely.

Practice clear messaging. An important part of planning for a pandemic is assuring that your lawyers and staff receive clear messaging about what your law firm is doing and what you expect from your team. The Centers for Disease Control and Prevention (CDC) provided helpful information and recommendations for businesses online, and current epicenters and outbreaks of diseases, but law firm owners need to distill it into a plan of action that is flexible and responsive to the evolving situation.

We now understand there will be much incorrect information flowing about any crisis, especially through social media. Someone should be tasked with providing regular fact-based updates to all law firm employees.

Avoid community transmission. If you must maintain an in-office schedule: (1) direct staff to stay home or go home if they feel ill, (2) publish a point of contact within the firm, (3) get disinfectant wipes and hand sanitizer for the office and recommend everyone use them frequently, (4) remind everyone to wash their hands frequently, not shake hands or exchange hugs and to sneeze into their elbows, (5) arrange to disinfect the office regularly, (6) consider discontinuing use of a break room, and (7) devise a plan for use of bathroom stalls that limits the number of people sharing. Frequently contacted surfaces should be disinfected several times an hour. Consider rotating staff in shifts, so fewer people are on-site at one time.

We have all now learned a lot about working from home without access to a staffed central office. Your plan should reflect these lessons. An important aspect of remote work is effective management of staff.

Perform advance testing. Your plan should include a regular schedule to test remote work systems. Also, discuss specifically with staff and lawyers deemed eligible for remote work the logistics of how to proceed.

Talk about money. Talk with staff you have deemed not eligible to work remotely about their compensation while the office is closed. Be sensitive to employee needs and try to accommodate a short-term disruption where possible. Additionally, there may be those who can work remotely but whose compensation is affected.

Consider remote access security. Security measures are mission critical when working in the office but become even more important if your workforce goes remote. Law firms should analyze the specific security issues that must be addressed if a workforce goes remote. Law firms should establish security requirements for home offices, such as password-protected Wi-Fi. Consider whether the firm will supply a laptop and smartphone or require employees to use their own equipment (the so-called BYOD issue). Should the firm require a specific security package on employee devices? Does your firm have a site license that could be used? For laptops, basic security measures such as password protection, anti-virus, anti-malware and regular automatic updates are appropriate.

Physical security. Don’t omit the simple items from your plan, such as asking employees to close a door or find a private room in the home to provide more privacy when discussing client matters on the phone.

Address stress. Caution lawyers and staff about their stress reactions and implicit bias. COVID-19 has resulted in even some who are typically resilient melting down over something that would have typically been a minor annoyance. Staff and lawyers must recognize the stress at the root of some conduct and be more forgiving of others (and themselves). Stress reduction practices should be encouraged. Discuss xenophobia associated with diseases, especially when the firm serves diverse or vulnerable client bases.

SO, WHAT DID WE LEARN?

We gained a new understanding that the vast majority of U.S. law firms may have no option but to employ remote operations during a national crisis. We have also learned collectively that working from home has a totally different meaning and raises new issues when family members and bored children are added to the remote work structure.

During COVID-19, it became apparent that the skills to manage well in person do not always translate to managing well remotely. Different people adapt to new technologies and systems at different rates and in different ways. Teaching staff how to use remote communication tools proficiently, reiterating responsibilities in multiple ways, and managing staff through remote communication and task management programs will become essential. Law firms should consider and implement tools that will support effective remote workforce management.

It also became apparent that creative and effective teleworking policies are an important consideration in a pandemic-type crisis. For example, a policy that requires a lawyer be available and by her phone during business hours may require some flexibility. The policies that worked for remote workers without school closures vary from those required when children are at home. Law firms can use the lessons learned from COVID-19 to create workable policies for the future.

We have an extraordinary opportunity to get crucial feedback from the COVID-19 event. Sometime soon, when regular times return, every law firm employee and partner should be asked to compile an “after-action” report to assess how well their work-from-home tools functioned and what frustrations they experienced. This feedback should be used to revisit your emergency work plan to see where it should be revised.

HOW DID YOUR ORIGINAL PLANS AND SYSTEMS FARE?

One thing seems clear. Firms that had embraced paperless operations with complete client files securely accessible through a cloud storage or case management platform likely did much better than those more tied to physical paper and filing cabinets. Although law firm advisors and consultants have urged this approach for years, not all firms have become paperless or created remote access in a systematic fashion.

From the lessons of 2020, we predict that those clinging to paper may finally let go, and “safe in the cloud” will become the de facto law firm standard of information management for protecting both client information and continuity of business operations.

How did scanning work? While there may be little perceived need for printing and scanning in the home office because the work remained on the computer, there are times when the law requires a physical document. Law firms should revisit the availability of scanning equipment or alternatives and plan and train on effective processes for the future.

How did mail processing work? Many firms could not go 100 percent virtual because someone had to go in periodically and process the mail. This was key for those clients who pay by mailed check. Before COVID-19, we rarely contemplated mail instilling fear in staff. Add to this the complication of stay-at-home orders issued, and it becomes clear that law firms will need to address the handling of incoming mail moving forward. Law firms that did not switch to mail scanning services and electronic payments should revisit doing so.

Do you have a videoconferencing plan? Videoconferencing became huge. Zoom’s usage soared from 10 million users a day to 200 million, and “zooming” became a synonym for “holding an online meeting.” This was followed by “zoombombing” incidents where unwanted participants invaded and disrupted videoconferences. A debate over videoconferencing security and quickly added security features followed. Is your teleconferencing system secure and accessible to your staff and professionals? Have you considered a virtual office meeting to communicate current information or upcoming changes?

I predict the rise in use of videoconferencing will be one of the permanent results of COVID-19. After several months of regularly using videoconferencing tools, it will seem almost rude to drag someone into your office for a conference, particularly if your clients are elderly, immobile or winter temperatures are low.

What are your signature capabilities? Wet signature requirements became a pain point overnight. Lawyers realized

contracts, forms and documents could be reviewed fully over videoconferencing before signing, but some jurisdictions require wet signatures and witnesses on certain items. Lawyers sent the documents to clients and had to contend with delays and client mistakes. This spurred a conversation about signatures and virtual notary services, as well as underscored that lawyers need to understand all aspects of electronic signatures and remote online notarization in their jurisdiction.

How would your clients rate your emergency preparedness? Clients need more assurances than ever before. Law

firms that did this well started with messaging to clients who were potentially sick to not come into an appointment with you and preparing them to meet by videoconference or telephonically as well as explaining the COVID-19 effects on his or her case. As widely varying shelter-in-place and stay-at-home orders were issued by state and local authorities, firms had to update their public messaging. Firms reported if they were open for business and how best to contact them though their email auto-responses, websites and social media. Your firm needs to keep your clients in the loop and demonstrate that you are flexible and mobile-capable.

The CDC said in a teleconference that viruses still surprise. That has been borne out as the pandemic has progressed, and plenty of lessons and takeaways will be revealed later. Let’s hope this never happens again, but one thing is clear: Our business planning must now account for pandemic emergencies in the future.