The COVID-19 pandemic has sent the U.S. economy, including the legal industry, into upheaval. The Bureau of Labor Statistics estimates that the legal services sector lost 64,000 jobs in the month of April alone. For those who remain employed, remote work has become the new normal.
It remains to be seen how the post-pandemic economy will affect law firms, but already we see signs of increased opportunities in the legal industry. For example, a surge in activity is expected from clients having suffered supply chain disruptions, debt restructuring, and financial challenges. The economic shutdown is already showing a significant rise in companies seeking guidance on unmet contractual obligations.
As the country begins to slowly emerge from the pandemic, thousands of attorneys will be looking to move to new law firms or create their own, bringing clients with them and creating the potential for conflicts of interest at their new firms. In these changing times, it’s more important than ever to avoid conflicts of interest that could lead to disqualification from representation, or even malpractice.
The key to managing conflicts of interest is keeping good records, using an effective client intake system to assess new clients, and managing access to information by attorneys and staff. A conflicts-checking process based on paper files or spreadsheets will not suffice with today’s virtual workforce. Fortunately, practice management systems can now efficiently perform conflict of interest checks and protect firms by effectively creating and managing ethical walls.
The following are several key steps that law firm leaders should take to strengthen the ethical walls that support firm growth and ensure no new clients are turned away needlessly in the post-pandemic “new normal.”
1. Set Up a Consistent Conflicts-Checking Process.
Fiduciary duties limit a firm’s ability to represent clients whose interests may be adverse to existing clients, former clients, the firm, or its attorneys, but potentially adverse client histories do not necessarily prevent a firm from taking on clients if proper ethical walls are constructed. If your firm wants to hire a lateral attorney who is bringing along a client in the construction industry, for example, and you find that the firm has previously handled several construction litigation cases, including some against that potential new client, a clear conflict exists. That doesn’t mean, however, that you’re required to turn down the new client or the new hire as long as you have the proper safeguards in place.
2. Establish an Ethical Wall.
Make sure that any attorneys or staff who have worked adversely to your new client will be prevented from having any contact with the new client or access to any records related to cases involving that client. The firm must immediately establish an appropriate ethical wall once the potential conflict of interest and affected attorneys and staff are identified. Further, informed consent is often a preliminary step to establishing the proper safeguards.
3. Control Access to Physical Files.
While physical files are less of an issue during remote work times, eventually your firm will fully reopen. You must know exactly where all files related to every client are located and have procedures established that limit access to those files to only those employees on the correct side of your ethical walls.
4. Create a Digital Wall to Control Access.
For most firms, critical client information and case files are in digital form. Fortunately, technology can simplify the creation and management of a digital ethical wall. While add-on software applications are available, they may not be necessary. Look first to existing document management or practice management systems for an integrated solution.
AbacusNext practice management systems include the ability to identify and control employee access by file and by matter, with organizational and individual fine-tuning. Controls for larger firms can be tailored to the needs of particular teams or practice groups. Centralized administrative management allows a partner or firm administrator to perform a conflicts check across all matters and therefore manage all potential conflicts at once.
Entrusting ethical walls to the right practice management solution makes it easy to implement and enforce internal walling protocols with firm staff. What used to be accomplished by locking file cabinets is now executed with a few simple clicks.
5. Control Communications.
Establish clear rules and procedures that govern the content of staff communications and interactions. Employees working on a matter protected by an ethical wall must be prohibited from discussing confidential matters with any attorneys or other employees on the other side of the wall.
Similarly, any screened attorney must be prohibited from supervising and working with any attorneys involved in the affected matter, and vice versa. The idea is to create an environment in which there is not even the appearance of impropriety or the opportunity for an ethical wall to be breached, even unintentionally.
6. Train and Educate Staff about Ethical Walls.
Every firm should offer continuing education to attorneys and legal staff on the use of ethical walls and issues of confidentiality as part of broader firm training initiatives.
Make sure that all firm employees understand the purpose behind them.
Any ethical wall that is established must be conveyed via clear instructions to all lawyers and staff – everyone must understand that a screened attorney can’t work on the walled matter and that no one working on the affected matter may discuss it with the screened attorney. Reinforcing the training helps employees understand the importance of ethical walls and reduces the risk of a violation.
Ethical Walls in the Virtual Era
With attorney mobility on the rise and remote work an everyday reality, identifying and managing potential conflicts of interest are more important than ever.
The right technology can help law firms seize new growth opportunities and win new clients while effectively identifying and managing access to sensitive client information.
Legal practice management tools create effective walls that allow busy firms to properly take on new business and ethically manage it, removing obstacles to thriving in the post-pandemic, virtual work environment.
About the Author
Tomas Suros is a technology advocate working at the intersection of IT and client consulting. With AbacusNext since 2004, he currently is the company’s global product marketing director. Reach him at Tsuros@AbacusNext.com.