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COVID-19 Considerations: Reducing Malpractice Risks

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For decades, Minnesota Lawyers Mutual has helped its insureds reduce their malpractice risks. The COVID-19 pandemic presents new challenges for the legal system as lawyers and courts nationwide adjust their work environments to combat the virus. Alice Sherren, Senior Claims Attorney, shares insight and references the “ABA Model Rules of Professional Conduct” to help avoid malpractice and ethics problems during this public health crisis.

Everyone is affected in some way by COVID-19, and many are experiencing significant stress. Some are facing health crises, some are concerned that their businesses will fail before the virus is under control and some are concerned that they won’t have enough money to feed their families if they cannot work. While the legal profession cannot stop the effects of this global pandemic, we can take steps to continue to effectively advocate for our clients while reducing our malpractice risks.

Much of the anxiety people across the globe are experiencing is due to a fear of the unknown. As lawyers, we should do what we can to ease concerns clients might have in connection with our representation of them. Clear and careful communication is at the heart of ethical client service (Rule 1.4: Communications). Don’t wait for your clients to contact you. If you have not already done so, reach out now to provide your clients with the peace of mind that you are continuing to provide excellent legal representation to them during this difficult time. Be sure your clients know how your firm is responding to this global pandemic. Especially if working remotely, lawyers should directly inform their clients how they can be reached by emailing each client individually and providing the information via voicemail, website, and other social media.

Your clients will likely have questions about how COVID-19 might affect the legal system in general, and their interests specifically. Be diligent in keeping apprised of how various jurisdictions are responding to this global health issue. (Rule 1.3: Diligence). Federal and state jurisdictions, and specialty courts within those jurisdictions, are approaching this pandemic in different and continually evolving ways. Keep up with developments for any courts where you have cases pending by checking their websites and those of the administrative courts above them. Some courts have expressed a willingness to forgive some impending deadlines, but not all. In most cases, statutes of limitations are not negotiable so consider tolling agreements, and extend professional courtesy to opposing counsel and litigants. Be sure you understand whether and how rules of service are affected by social distancing guidelines.

Clients may have concerns about how social distancing will affect your ability to communicate with them, opposing counsel and parties, witnesses and experts, and the courts. Explain how you are leveraging technology to continue to provide excellent legal services within the seemingly constantly changing parameters mandated by local, state and federal governments. (Rule 1.1: Competence (comment 8 addressing technology)). Many states are requiring non-essential employees, which generally includes lawyers, to work from home. If transitioning from an e-calendar on your work device to a home device, ensure there are no gaps in data. Don’t assume that the events from one device automatically copy to the other, even if you use a cloud-based calendaring system. And as always, be certain that you are communicating effectively with your clients. Set your clients’ minds at ease that, even if working remotely, you are able to zealously advocate for them while keeping their information secure. To the extent possible, utilize telephone, email, video conferencing, and other virtual communications and proactively explain the precautions you have taken to protect confidentiality (Rule 1.6: Confidentiality).

alice

Alice M. Sherren

In the era of social distancing, “in person” meetings may be few and far between. While technology has made it possible to conduct most business virtually, continue to use caution, especially when being retained by a new client. It can be difficult to ascertain tone and credibility with just the written word, and certain platforms present confidentiality concerns. Be certain you are comfortable that your client is who she says she is, and that you can competently and ethically do what they are asking you to do for them before agreeing to represent them.

It’s difficult to predict the long-term effects of this pandemic, but certainly there will be financial repercussions in addition to health concerns. Don’t panic.  Avoid the urge to take on work you are not qualified to do. (Rule 1.1: Competence). If your practice has slowed, use this time to get ahead on continuing legal education requirements or to develop knowledge that might allow your practice to expand once business is back to normal. There will almost certainly be a surge in lawsuits relating to medical malpractice as the experts struggle to understand this new virus, and failed business ventures caused by the global shut-down of commerce. Be certain that you have the requisite knowledge and skill before taking on representation of clients in developing areas of the law.

Nearly every industry will be negatively affected by COVID-19. Many people will be out of work, small business may close, and people may find themselves unable to pay their mortgages or other debts. Lawyers are no exception; we need to have our legal fees paid so we can support ourselves, our employees, and our families.  This should go without saying, but never “borrow” from your client trust account to cover overhead expenses, even if you believe you will be able to “repay” the funds quickly. (Rule 1.15: Safekeeping Property; Rule 8.4: Misconduct).

Ethics rules do not require a lawyer to work for free, but it is best to maintain a positive attorney-client relationship where possible. If a client has not paid legal fees owed to you, communicate with them and work with them to determine a plan that is acceptable to both of you. Consider modifying payment plans. It’s better to recover a reduced fee, or recover the entire fee over a longer period of time, than to immediately demand payment from a client who, like everyone, is stressed emotionally and financially in unfamiliar ways. (Rule 1.5: Fees).

ALICE M. SHERREN is a senior claims attorney with Minnesota Lawyers Mutual Insurance Company, where she directs the defense of legal malpractice claims and advises attorneys facing ethical or disciplinary complaints. Alice frequently develops and presents continuing legal education presentations and writes articles for various publications on risk management and ethics matters.