By Daniel Gerber, Barbara O'Connell and Richard Tucker

Law360 (May 19, 2020, 4:12 PM EDT )

Daniel Gerber

Barbara O'Connell

Richard Tucker

As states begin to lift their stay-at-home orders, businesses of all types are grappling with how to safely resume operations and bring employees back to work. Law firms are no different, but they face unique challenges that other workplaces do not.

While all reopenings will be phased and gradual, the work lawyers do is not. Whether it's a complex M&A deal that requires an all-nighter or preparing for a must-win trial that demands the contributions of a large team, the practice of law is fast-paced — and until now, often required significant face-to-face interaction. Law firms face the challenge of competently and ethically meeting service expectations while protecting clients, lawyers and staff from COVID-19 infection.

The issues firms face span from timing return to work, the impact of return to work on specific practice areas, resource considerations, and leadership challenges.

Timing Factors for Reopening

While many firms are focused on how they can reopen, the first crucial question is when this can happen. In this respect, the Centers for Disease Control and Prevention and state and local governments have guidelines specifying when categories of businesses are permitted to return to work. A key consideration is that once law firm opening is allowed, it is not mandatory. Most businesses may opt not to not return to a normal work environment if they do not feel it is safe or appropriate.

Still, law firms may not have the luxury of keeping offices shuttered and employees at home indefinitely.

For litigation-centered practices, as soon as the courts resume operations (and for some jurisdictions even before) law firms will need lawyers available for appearances and staff to support them. There will be in-person hearings, depositions, client preparation, independent medical examinations, on-site inspections, as well as filings and statutes of limitations deadlines. Many of these historically required face-to-face interactions, putting lawyers and staff into contact with co-workers as well as opposing counsel, court personnel and others.

Proactive and prospective travel restrictions should be considered. If firms enact policies regarding appearances required by courts or counsel, they provide their lawyers the ability to fall back on the policy, and then reasonably address alternative resolution of the circumstance.

Law firms must develop policies for deliveries, mail, office traffic patterns, supply distribution, equipment disinfection and many other tasks as they "time" reopening. There may also be precious little notice for law firms before the legal community ramps up. Given this, it's important to have return-to-work plans in place now with all critical measures thought through in advance. Lawyers and legal staff are used to last-minute rushes to meet deadlines. This is not an approach to apply to this situation.

Legal Practice Considerations

The CDC, as well as many state and local governments, have classification systems specifying the amount of virus "community spread" occurring in a geographic area. The CDC has three categories of severity, and other localities have similar systems. Pennsylvania, for example, uses a traffic light analogy. Green means there is minimal spread, yellow means minimal to moderate spread, and red means substantial rates of infection.

Firms will have to design the measures they need for each category, and consider protocols for tightening and loosening restrictions as rates of infection change. Thought must be given to how these ebbs and flows affect each practice of law.

It is important to keep in mind that what works for the majority of businesses in terms of health and safety procedures may not fit law firms. The nature of legal work demands careful attention and ongoing balancing of risk.

Depending on area of practice, some of the law-firm specific scenarios that will require planning include:

• Lawyer collaboration on negotiating contracts such as M&A agreements often requires long hours and face-to-face interaction in the office. Lawyers and staff may need to continue the use of videoconferencing and virtual document sharing despite being in the office and just a few doors apart from each other.
  
  
• Litigation typically presents situations where large amounts of documents need to be handled in response to document production requests. Firms will have to be fully prepared for electronic review and sharing.
  
  
• Witness preparation and production was almost never done virtually prior to the pandemic. This was based upon client confidentiality concerns and the belief that in-person participation enhanced competent advocacy. Law firms now face a patchwork of varied procedures in different jurisdictions. This includes remote video depositions that many clients historically have rejected. With more localized cases, the reverse may be true. Judges may require cases to move forward without face-to-face hearings and discovery.


• Arbitrations and mediations have typically required in-person attendance, as have trials. This may change. Some judges are conducting bench trials by video already. Many virtual platforms allow the creation of breakout rooms to enable proceedings. Lawyers will need to become accustomed with this new status quo.

Law Firm Resource Reflection During Reopening

No doubt, meticulous planning should take place before any lawyers or staff set foot in the office again. Consideration must be given to necessary changes to physical office space, sanitation protocols and physical distancing requirements.

Some of the policies and procedures law firms should consider include the following:

• The number of people involved in mail handling should be limited and mail handling procedures should be amended; for example, consider internal or external scanning of all mail. Be cognizant of delays in mail handling, along with the impact on filings and response times, as a result.
  
  
• Firms must hold depositions and meetings in larger conference spaces with a limited number of chairs and consider adding casters to chairs that don't have them.
  
  
• Only designated persons should deliver office supplies and operate firm equipment.
  
  
• Client confidentiality and attorney-client privilege requires all communications to occur "behind closed doors." This will require much larger spaces, perhaps with increased ventilation, or will require virtual conferences but with proven encryption and anti-hacking protection.
  
  
• The need to take temperatures or administer health questionnaires for visitors may create records to which other counsel, clients or other parties may object. Policies and proper notice must account for this and consideration should be given to how other firms' COVID-19 return-to-work policies may impact client representation.
  
  
• Greater consideration should be given to cloud-based platforms and phone systems, as well as a shift away from desktop computers for staff.
  
  
• Lawyers like to print motions and key documents to review or take to meetings. Firms may need policies restricting such practices on an inbound or outbound basis.
  
  
• Previously, "clean desk" policies were needed to protect confidential information. Now they are indispensable to protect the work environment.

The Importance of Law Firm Leadership

A law firm that does not consider policies and procedures necessary for safe reopening may struggle, especially if attorneys and staff lose confidence in leadership. A well-defined supervisory structure with reporting procedures is needed now more than ever in a COVID-19 return-to-work environment. Clear leadership sending consistent messaging is critical to a firm's successful response.

Leadership includes setting the example and the realization that a law firm's greatest assets are its people. Now more than ever, employees are dealing with numerous issues outside of work — from homeschooling children to taking care of vulnerable relatives and friends. This places unprecedented demands on a firm's number one resource — and true leadership will take this into account.

Demanding an employee return without consideration of personal factors may have an overall impact on morale, client service and firm productivity. A leader who sends everyone back to the office, but is never there, may have the same effect.

As always, communication is key. Leaders must also realize that employee expectations have changed. Ironically, when working from home, many lawyers have often spoken more with their staff in a day then they used to in the office. Employees have been brought together more, given more frequent input, and communication has generally been more authentic and transparent. If this changes upon return, then law firms and client service may suffer.

Conclusion

Law firms are not alone in dealing with the impact of COVID-19 and the resulting closure of America's workplaces. In reopening, they will face many of the same issues as other businesses. Nevertheless, the nature of their work and the clients they serve demand a modified approach. Firms addressing these issues now will be ahead and their clients better served.

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Daniel W. Gerber is a partner at Gerber Ciano Kelly Brady LLP.

Barbara A. O'Connell is a partner at Sweeney & Sheehan.

Richard Tucker is managing partner at Tucker Law Group. 

The authors are members of DRI — The Voice of the Defense Bar and served as panelists in two recent DRI webinars on issues law firms and their clients face as they reopen after COVID-19 shutdowns.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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