Webinar Recap:
How to Safeguard Your Law Firm Against Future Disruption


As the COVID-19 pandemic continues to surge in various parts of the country, you’re no doubt facing uncertainties surrounding how and when to reopen your law firm. You’re also likely wondering about the future of your law firm and its book of business. One way to abate those concerns is to prioritize preparing your firm for whatever may come. Whether it’s a pandemic or economic downturn, pre-emptive protocols and a strong technology foundation will help you maintain business continuity in the event of future disruption. Is your firm ready? If not, there’s no better time to ensure that you’re protected.

Jump to a Topic

8:16 – Why Future-Proofing Matters

As an attorney, you have an obligation to stay in communication with existing clients and protect their data even during times of disaster or uncertainty. In this portion of the webinar, Niki offers guidance on the difference between disaster planning and business continuity planning and why legal teams need both. 

14:00 – Ethical Guidance on Future Proofing

In the new era of working remotely, there are 2 opinions that are particularly relevant to both disaster planning and future-proofing: ABA Opinion 482 and Pennsylvania Opinion 2020-300. Niki breaks down each opinion and how to apply them to your disaster planning in order to maintain business continuity with security and client confidentiality in mind.

26:13 – Reopening With the Future in Mind

With no definitive end in sight of the current pandemic, disruption is a looming threat. There’s no better time to put procedures and processes in place to keep your office safe and prepared for potential disruption down the road. And it all starts with these crucial investments in your firm’s physical infrastructure and technological infrastructure.

52:00 – Choose the Right Technology

Not all legal tech is created equal, particularly in times of disruption to your business. In this portion of the webinar, Niki dives into the 3 requirements of software that enable legal teams to work in unison successfully and efficiently while working remotely.

Transcript

Niki Black:

Welcome. My name is Niki Black, and I’m going to be talking to you today about future proofing your law firm. Before we get started, just by way of introductions. This webinar is brought to you by MyCase. MyCase provides practice management software that helps law firms solve the key challenges of running a business, like getting paid on time, coordinating with clients and staff case organization, and a lot more often the office and court, from home and most relevant to today’s time and a lot of what I’m going to be talking about today, remotely. It helps you set up a remote office and run your practice from just about anywhere and communicate with colleagues and clients no matter where they’re located as well. And beyond that, in MyCase, we really enjoy hosting educational events for professionals in the legal industry.

Niki Black:

And that’s why we’re all here today. If you’d like to give MyCase to try, you can do so on our website at www.mycase.com. There’s a free trial. No credit card required, and you can sign up for a free trial of MyCase there. And I’m going to talk to you today about future proofing your law firm. And by way of introduction, if you are not familiar with me, my name is Nicole Black. I’m known as Niki Black oftentimes online and in social media. I am the legal technology evangelist at MyCase. I’m an attorney. I started practicing law in 1995. I began my career at the Public Defender’s Office here in Rochester, New York, which is where I’m located today and where I’ve lived since 1995. I was a public defender for nearly four years. And then I moved on to a civil litigation firm, or I did a lot of civil litigation and I continued to do criminal defense.

Niki Black:

I’ve also been of counsel to a DWI defense firm locally. For the past decade or so of my career, I’ve shifted focus. I exist where law and technology intersect and it’s been my privilege to educate lawyers about how to use technology. To that, I do that by writing and speaking to lawyers. To that end, I authored Cloud Computing for Lawyers, which was published by the American Bar Association in 2012. I co-authored Social Media for Lawyers with Carolyn Elefant. Some of you may have heard of her. She also writes a lot for Solo Lawyers. The ABA published that in 2010, and I also coauthor Criminal Law in New York with judge Karen Morris who’s a judge here in Rochester. Criminal Law in New York is a substantive Criminal Law Treatise published by Thomson Reuters. And we cover all of the different substance developments of all the different crimes in New York.

Niki Black:

And we update it annually. I’m in the middle of that update right now. And the other way that I educate lawyers about the intersection of law and tech is at webinars like this. I speak frequently nationally and even internationally at different conferences and CLEs to lawyers about how to use technology. And most recently I spoke … I chair the Technology Committee at my local bar association for three years, the Monroe County Bar. And I’m now on the board of trustees. And during those three years, I organized a lot of CLEs. And at the end of my tenure, just a month ago, I organized the panel and spoke on a panel for lawyers at the Monroe County Bar about reopening your law firm in the midst of COVID. Some of what I’m going to be talking about today, I draw on that particular presentation.

Niki Black:

And the information I shared there, but it’s obviously been updated because COVID is a rapidly fluid and changing situation. And the information that lawyers need to understand how to continue in the face of COVID is also changing. To that end, I’ve certainly updated. I’ve also included some other elements in this webinar as well. I’m going to be talking to you about future proofing your law firm. And in that context, I’m going to be talking about the ethics of future proofing your law firm and why that matters. I’ll be talking to you about practically speaking how to future proof your law firm in the short-term, both how to reopen it when that becomes a legitimate opportunity for you in your region. And also things that you can do as you’re reopening your law firm to help future-proof it.

Niki Black:

And then I’m also going to talk to you about the importance of disaster planning and business continuity planning. And I’m also going to then at the end talk about some of the technology that you will need to both help you now with remote working and also just future proof your law firm from future uncertainties, kind of like the one that we’re all encountering now. And before I dive into this, there is a question and answer feature here, and you’re welcome to submit questions there. And there’s also a chat functionality. The Q&A is probably the best place to submit the questions if you have any. And what I’m planning to do is there’s four parts to this presentation. And at the end of each part, I’ll stop and address any questions there.

Niki Black:

There’s also a Q&A section at the end as well, if there’s some loose ends that we need to tie up there. And the other thing I would point you to before I dive into this, is a couple of different resources, articles that I’ve written that will be useful for you after this presentation. I write a biweekly column for Above the Law and a monthly legal tech column for the ABA Journal. And I also write for the MyCase blog and for the Daily Record. The Daily Record is behind a paywall. I’m not going to refer you to any of those. But some of my recent ABA Journal articles will be incredibly useful for you in terms of technology. I’ve written since March articles on different types of remote tools and legal software that you’ll need to run your practice remotely. I’m going to talk about a lot of those today, but those articles, I really go in depth in terms of each specific kind of tool, for example, document management, legal billing software, payment processing software.

Niki Black:

And so that you can then actually I dive into what each type of software is. I talk about some of the main competitors in the market, and some of the things you need to think about when you choose that software. My ABA Journal articles will be really helpful in that regard. I’ve also written significantly on the MyCase blog about COVID-19, reopening your firm, working remotely, future proofing your firm. There’s tons of resources available on the MyCase blog. If you go to mycase.com, click on the blog in the upper navigation bar, you’ll be able to navigate to the blog and read a lot of those after this, if you’d like to. Those are just some resources that will be really useful. And I’ve also written on Above the Law about Zoom conference, video tips, and that type of thing. You can also look at Above the Law columns as well. There’s a lot of resources out there that I’ve written about, and also my colleagues that you can find on these as well.

Niki Black:

Let’s dive into today’s webinar, now that I’ve gotten all that introduction out of the way. Let’s talk about future proofing your law firm. Now, this quote is from an ABA opinion that I’m going to talk about a little bit later in the webinar. And it’s from an opinion that talks about why lawyers have an ethical obligation to plan for disaster and to get their firm ready in case disaster strikes. And it’s because you have to be prepared to deal with it. You have ethical obligations to ensure that your clients are able to reach you so that you can communicate with them and protect documents, funds, and other property that you’re holding for those clients with third parties. And this is for any type of disaster. There’s disaster planning and then there’s business continuity planning. Let’s just break both of those down. Disaster planning I would suggest is when you really encounter a national disaster that makes your office inaccessible or even destroys items in your office or parts of your office. You have an obligation, an ethical obligation to ensure that if that happens, you’re able to communicate with your clients.

Niki Black:

You’re able to access documents. You’re able to continue business, not necessarily as usual, but you’re able to at least continue with the representation of your clients, even if your office is destroyed. And this can happen in a lot of ways. Hurricane Sandy is a great example. When Hurricane Sandy hit New York city, a lot of large law firms in particular were out of luck because their servers, they used a premises-based computing. Meaning they didn’t use cloud computing more often than not. And their firm’s servers were often located in the basements of those large skyscrapers in New York. And what happened is when Hurricane Sandy got those basements flooded, and obviously the servers did not survive the flood and so they lost access to their law firm data for weeks on end. Whereas there were a lot of articles about solo and small firm lawyers in New York city who were already in the cloud at that point.

Niki Black:

This was a couple of years ago. And they were using cloud computing and they were able to, once they had wifi or data, they could access that information from their phones, from their laptops. And some of them were even standing outside of Starbucks because Starbucks was closed, but they kept their wifi on as a service to the community. And they could stand outside Starbucks even to get that information on the phone immediately after the hurricane hit. Another example is, here in upstate New York, a couple of years ago, there was a law firm in Buffalo that there was a fire in the law firm and the newspaper articles about it talked about how the extreme heat caused the windows to blow out. And the law firms documents were blown out into the street below.

Niki Black:

It was a skyscraper and I use that term loosely because it’s upstate New York and downtown Buffalo rather than New York city, but it was a 20-floor building. And so because they did not use cloud computing, all of their law firms files were just blown out into the street. And obviously that put them in a position where they could not communicate with their clients and were out of commission for a while because all of their data was in that firm that had caught on fire. You have an obligation to make sure that you’re using technology and that you have plans in place so that if a disaster does hit, whatever type of natural disaster likely to hit in your region, whether it’s an earthquake, tornado, hurricane and a fire can happen anywhere, you have the data accessible and saved somewhere else, offsite, and that you have plans in place.

Niki Black:

And we’re going to talk about some of this in the reopening. With the reopening plan, obviously those are plans to get your firm to reopen, but you can also establish those plans with the future in mind and that can be part of the disaster planning for your firm. There’s also this concept, however, of business continuity planning. It’s very similar to disaster planning, but it’s slightly different. And I would argue that that’s more of what has come into play during COVID-19. First of all, most people did lose access during the quarantines, depending on when your jurisdiction did this to their offices. But their offices, their data was not destroyed as it is oftentimes during a natural disaster, but you have an obligation to have a plan in place so that even when you lose access to your office or something else unexpected happens, you are able to continue business as usual.

Niki Black:

You’re able to represent your clients, provide them with the information they need, appear in court hearings remotely, which is something that we’re all doing now that we never expected would be happening. Business continuity planning is just more of this idea that no matter what happens, you have the tools and the plans and procedures in place that will make it possible for you to continue running your law firm, even if you don’t have access to the physical brick and mortar part of your firm. What we’re going to talk about today is delving into some of these concepts and giving you some ideas of how to go about ensuring that you have these plans in place and that your firm is protected no matter what uncertainties it faces.

Niki Black:

Before I dive into the ethical guidance on this, does any … I don’t see that there’s any questions in the Q&A right now. Unless anybody has additional questions, right now I’m going to dive into this next part, which is the ethical guidance on future-proofing your law firm. Last call. All right, I’m going to move on. Let’s dive into this part now. There are two opinions that are particularly relevant when it comes to future proofing your law firm and disaster preparedness. The ABA issued an Opinion 482 a couple of years ago on the ethics of disaster planning. And it’s a really useful opinion. And I’m just going to talk about some aspects of it momentarily that explain it in full, why it’s so important that you have a disaster plan in place and some of the elements of a successful disaster plan.

Niki Black:

And then more recently in May, Pennsylvania issued, I believe it was May, might have been April Opinion 2020-300. And on this was the only ethics opinion that I’m aware of that’s been released since COVID-19, the pandemic kit that relates to that pandemics specifically. The Pennsylvania Opinion was written to address the ethics of remote working for Pennsylvania attorneys, but it’s also very instructive for attorneys in all jurisdictions. And it covers some of the issues you might be wondering about in terms of how to ethically work remotely and preserve confidentiality for your clients. First, let’s talk about ABA’s Opinion 482. Sorry, one second.

Niki Black:

Actually, let’s talk about Pennsylvania Bar Opinion 2020-300. According to the Pennsylvania Bar, lawyers have an ethical obligation to plan for business continuity. They have to be able to securely communicate with clients no matter what, and to preemptively implement the necessary technology. Essentially you have to have these plans in place for business continuity so that you can continue to represent your clients, so you can communicate with them and that your clients aren’t left in a latch because you don’t have access to information because even in the midst of a pandemic, some court matters did proceed pretty quickly, especially the ones that were constitutionally required to do so mostly criminal matters. Even in the midst of a pandemic or other disaster, life goes on. You need to be able to continue representing your clients when that happens.

Niki Black:

Some key quotes are that lawyers have an ethical obligation to implement reasonable measures, to save their property and funds that they hold for clients or third parties, prepare for business interruption and keep clients informed about how to contact the lawyers or their successor counsel. And that’s an issue of if you become ill which is another business continuity issue. If you become incredibly ill, suddenly if you’re in an accident or have some sort of cardiac event or come down with COVID for that matter, you need to make sure that all of these that all of these reasonable measures have been taken to ensure that the client’s case can go on and then a successor attorney who may be appointed or take on your matters voluntarily has access to all of that information and is able to get up-to-date on the case really quickly. You also need to be able to reach clients after a disaster.

Niki Black:

You have to maintain, or be able to create on short notice, electronic or paper list of current clients and their information, their contact info. This should be stored in a manner that’s easily accessible, with the point being, you need to be able to reach your clients. Someone else needs to reach them, if you’re incapacitated. And if that information is stored on servers located in your law firm, and no one’s able to access them if the law firm is cut off, as it has been during quarantine for a lot of people, then there’s no way to get ahold of your clients, which is why certain information needs to be readily accessible somewhere else and stored off site in the cloud in order for you to meet these ethical obligations. The Pennsylvania Bar formal Opinion 2020 talks about this and says, “It’s ethical for lawyers to A, use cloud computing.”

Niki Black:

They adopted ABA Opinion 477 analysis regarding secure communications. Well, you’re probably wondering about ABA’s 477 analysis. Good question. I’m going to tell you about that. In May of 2017, the ABA issued Opinion 477. And it was an Opinion I’d been waiting for a long time. If you recall my fraud computing book came out in 2012. I had thought that this would happen earlier. What the ADA said was that email that is unencrypted, so traditional email, which is not most lawyers use, is inherently unsecure. And that for particularly sensitive matters, lawyers need to use more secure communications. And on a case by case basis, either you need to make that assessment or else just use a different type of communication method all together so that you no longer have to deal with that issue of email being inherently unsecure. Email is inherently unsecure because it is unencrypted and it goes through multiple servers on its way to its final destination.

Niki Black:

Anybody with half a mind and the knowhow can tap into an email that’s traversing these different servers, that’s unencrypted. How come lawyers are allowed to use unencrypted email? Because in the mid-1990s, when email became commonplace in business settings, the bar associations had initially said that you have to get your client’s permission to use email, but in the mid-1990s, the ABA and other bar associations all caved because email was so commonplace and said, “You can use email. This is clearly just the standard way that people are communicating. Now, lawyers can ethically use email until such a time the technology changes, and there are more secure electronic communication methods available.” We have reached that time. In 2017, the ABA basically said, “We’ve reached that point in time, where there are more secure methods available.” Pennsylvania Bar Opinion 2020-300 adopted that analysis.

Niki Black:

And what that says is that you have to address each of your client’s matters every time a case comes in. Am I dealing with particularly sensitive information? And if so, you can’t use traditional email. You need to use something else. That is either encrypted email, secure client portal, phone conversations, traditional mail. You have to assess what level of security is needed. And in those cases you need to use something more secure. What I tend to recommend to most lawyers is, assessing on a case by case basis is kind of a pain and it just adds one more task that you have to deal with and one more decision you have to make. If you just shift your communications over to more secure communication methods, like a secure client portal, then you will meet that obligation with every case.

Niki Black:

I’m going to talk more fully about secure client portals and other types of technology that you need at the very tail end of this presentation. Secure client portals are typically built into law practice management software. It’s built into MyCase. It’s also built into our competitors oftentimes. MyCase when it was launched, secure client portals were part of it from the very get-go. They’ve always been a part of the MyCase platform and essentially what a secure client portal is it’s what you’re used to when you talk to your financial advisors or your physicians. These days, they require you to log into a portal and you communicate with them there. You’re able to obtain documents, upload and download them. Same thing for a secure client portal built into practice management software. As long as you have internet access, whether it’s on your phone or any other internet enabled device or a data connection, you can log-in and communicate with clients through that secure client portal. It’s encrypted in transit and at rest, which means that it’s an encrypted method of communication.

Niki Black:

And therefore it’s incredibly far more secure than traditional email. It was very notable that the Pennsylvania Bar Opinion adopted that analysis and that the ABA has also handed that down. And you can expect that to happen more and more often, especially now that we’re all working remotely, that you do need to, re-examine the ways that you’re communicating in order to be in ethical compliance. How am I communicating with clients? How secure is it? Are there more secure methods available that are affordable and reasonable and you may need to start using those? Another key quote is that a lawyer’s duty of competency includes the ability to reliably access and provide information relevant to a client’s case when needed. When you’re forced to work remotely, you are obligated to take reasonable precautions so that you’re able to access client data and provide information to the clients or to others such as courts or opposing counsel. And this has been a key issue for lawyers working remotely.

Niki Black:

Many people suddenly had to shift to remote offices a lot of the employees or all of them did and get access to critical information for your client’s cases was problematic for some lawyers and that’s where cloud computing comes in. And just to make sure we’re all on the same page about that, that’s where instead of having the data stored on your computer’s hard drive or on a server located in your office, it’s stored on a server owned by someone else located somewhere else. It’s owned by a third party. It’s maintained and upgraded by that third party. And then any software that’s run on it, like a practice management or document management, or any other type of software that you use, that software’s stored on that server that’s located somewhere else.

Niki Black:

Instead of using Outlook or Word or WordPerfect on your computer, which is how we all did it in the old days or on the server located in your law firms closet, now that software, Gmail for example, or Google Docs and all of the other legal software that’s run in the cloud is located on these servers somewhere else and your data is also located there. That means you can log-in and access even if your office isn’t accessible. You don’t have to worry about remote access tools, which a lot of lawyers have discovered are incredibly clunky, slow, and don’t work as well as their IT staff had told them that they would in an emergency. Cloud computing software gets rid of that issue and it makes it so that you are always able to enforce the work remotely, and access all of your client’s information. And that’s your duty, your ethical duty. Part of your ethical duty is competency.

Niki Black:

The vast majority of jurisdictions have now adopted technology competency as an ethical obligation. You have to make educated decisions about technology. You cannot simply put your head in the sand and just not make a decision. You have to be educated and choose not to use technology or choose to use certain types of technology. And some states are even requiring technology CLEs. Florida’s one of them. New York just is in the process of requiring. It hasn’t been voted on yet, but it’s been proposed, cybersecurity ethics credits. Washington, DC I believe is the other one. There’s one other jurisdiction that currently requires legal technology credits. This is happening more and more often. And this tech competence is part of your ethical requirement, including the ability to have your firm’s set up remotely just for something like COVID.

Niki Black:

Before I move on to the next stage, and this one is specifically related to COVID, let me see if we have any questions. I don’t see any questions right now. This is a lot of what I talked about from my bar association presentation on reopening law firms. I’m going to talk about a lot of that information that I’ve provided about how to safely reopen your law firm, but I’m going to add this twist of reopening it with the future in mind, to make sure that you’re putting procedures and processes in place that will help you both in terms of opening right now, to address the issue with COVID like the possibility of having to close back down if there’s a surge, but also just making sure that your firm’s prepared down the road and you’re making some investments in your firm’s, physical infrastructure and technology infrastructure, so that down the road, you’re going to be prepared no matter what comes your way, and you’re going to meet those ethical obligations as well.

Niki Black:

When it comes to reopening your firm with a future in mind, there’s sort of three areas of focus; the office and then employee and client safety. Employee and client safety oftentimes overlap. I’m going to talk about those a little bit in tandem. I’ll call out the client safety issues. I strongly suspect this is where some of the questions that you may have are going to come in because a lot of lawyers are still struggling with these issues. We’ve never done this before. We’ve never reopened after a pandemic, which makes it difficult. This is unchartered territory. Let’s dive in and talk about some of this. And let me just preface this section by saying that all of the information here is from different bar association guides that have been put out. Indiana was one of the first ones to come out with a guide. Now, multiple different bar associations have come out with different types of guides.

Niki Black:

And a lot of them look similar because they’re all drawing from each other. I’ve written about them extensively on the MyCase blog. If you were just to go to the MyCase blog and Google or search for reopening in the search box, all of the reopening posts will pop up. You can read them and you can also just find links to those different resources. There’s even a reopening resource roundup post. That might be a helpful one to go to. If you go to reopening and resources and search for that, you’ll find that post. And I have links to all the different bar association guides. And so you can see if there’s one list of there from your jurisdiction. It’s not all inclusive, but I did try to include as many as I was aware of at the time that I wrote the post.

Niki Black:

And so across the board, what these bar association guides recommend is that you establish a reopening committee for your law firm. If you’re going to be reopening during COVID. The larger your firm is, obviously the larger that committee’s going to be. You want to have stakeholders, you want to have a lawyer. You may want to have someone that’s a staff person on that reopening committee, office manager, IT depending on how large your firm is, and if it’s a solo or small firm, obviously it’s going to be a smaller committee. And you may just want to have two lawyers that are in charge of this. One way or another you need to have someone or a committee in charge of this reopening process and this reopening committee, which is what I’m going to call it from here on in, is going to be responsible for establishing the schedule for the return to work and the processes that will be put in place to ensure the safety of your employees and legal clients.

Niki Black:

They’re in charge of the entire process of coming back to work and going back remotely, if there’s a surge. The primary responsibilities of this committee are to monitor oversight of the reopening plan and its implementation. That means that they have to come up with a plan and then they have to oversee the process as the plan’s rolled out and is implemented. Develop and update as-needed internal policies and procedures for transition from remote work to the workplace. You need to ensure that the different types of employees at your firm have the information that they need to return to the workplace and also work remotely should that be necessary. You also need to communicate with legal and support staff with one voice about the transition, establishing clear expectations and firm wide training as-needed. We’ve never experienced anything like this.

Niki Black:

Your employees are going to be nervous about coming back to the office. It’s important to communicate clearly, to have one voice, not to provide them with competing answers or opposing answers. Make sure that everybody’s on the same page because the more comfortable your employees feel about coming to the office, the more productive they’re going to be. And what I like to emphasize to lawyers in terms of this particular point is you need to be empathetic and you need to have good leadership skills. And let me just put this gently. One thing that we did not learn in law school is empathy for the most part or leadership skills or management skills. We were not taught those things. We weren’t taught how to run a practice. We really weren’t even taught how to practice law in most cases. We don’t have those skills.

Niki Black:

We think that we are good at them because how hard can they be? And honestly, they’re not that easy. I worked for MyCase, which is owned by a larger company with over 1,200 employees. And there was a lot of internal training for people that are in positions of leadership and I went to a leadership retreat. It was a two-day retreat that was all about leadership skills. And there were tons of things that I learned at that retreat that were not even on my radar. They were not something I’d ever thought about. Leadership is an art form. It’s a skill. And in times of uncertainty, like COVID, it’s a really important skill to have, and it’s going to make a difference. And it’s going to be the difference between productive staff coming back to the office and staff being so stressed out at the office and not understanding the procedure and understanding whether they’re safe or not, that they’re going to be incredibly unproductive while they’re there.

Niki Black:

And so it’s to your advantage to make sure that you have strong, cohesive leadership and a very strong message that’s cohesive, so that they understand what the procedures are, why they’re in place and how those procedures keep them safe and secure upon returning to work in the middle of a pandemic. I highly recommend that you might head over to Amazon and search for a few books on leadership and buy one and read it because I think at a time like this, it can come and be really helpful. And this is one of those investments in the future of your firm. Future, these leadership skills, the skills that you obtained by reading that book and focusing on that, now are going to help you down the road and help you run a much smoother law firm and a much more productive law firm down the road.

Niki Black:

I highly recommend that you do that. Have empathy because your employees have a lot of issues that are unique and novel right now. They have childcare issues. They may have care-taking issues for someone in their family who’s sick with COVID. Their spouse may be out of a job right now. It’s really important to ensure that you have empathy and are understanding. I know you have a lot of stresses in terms of having to get back to work and wanting to get your business rolling again, because it’s been slow during COVID. I completely understand those stressors, but I also would suggest that you keep these things in mind because it’s actually going to make things go a lot more smoothly down the road. There is a question. Let me take a look at that real quickly.

Niki Black:

“Do you foresee federal and state legislation to impact the trends regarding immunity to employers? It might impact the transition of staff returning to the office.” I do know that, for example in the medical field, medical malpractice cases related to COVID, some states have passed some temporary legislation that shields them from certain, has raised the level of malpractice that you have to prove from the more ordinary level. I’m not sure if there will be immunity for employers. I would suggest that when I was on the panel at my local bar association, that one of the members of the panel that I was on, who’s a litigator, indicated he expects it to be a whole cottage, industry and litigation related to COVID. I would expect somebody to definitely come up in the realm of employment. With the current administration in place and the Republicans in charge, having the power in the Senate, I think that it’s possible that you may see some of that because that’s a more Republican leaning concern.

Niki Black:

It wouldn’t surprise me if that type of thing happens, if there was some legislation that protected employers, but I’m not aware. That doesn’t mean it’s not out there, but I have not seen anything to that effect yet. Although some jurisdictions may be doing that, some of the states, but I haven’t seen anything on a federal level. Okay. Let’s move on. Other responsibilities of the committee are to field questions or concerns, become familiar with federal and state statutes and programs governing office safety and human resource issues and that’s where some of this would come in. There may be some shielding from liability, but there are also a lot of requirements being handed down in New York. There are public health checks. And so what a lot of the lawyers here have been doing is printing out the Department of Health’s lists of what offices needed to have in place and ensuring that they have all of those requirements in there from in case there’s a spot check. They’re going by that because not the bar association guides because in their jurisdiction, that’s what they have to comply with in New York.

Niki Black:

And so that may be one thing you may want to do for your law firm to ensure that you are complying with the requirements in your particular jurisdiction. You will have to develop employee testing plan for testing the employees for the virus and develop clients and visitor policies as well. I’m going to go into those a little bit more in depth in one minute. One of the issues that you need to, in terms of complying with these statutes and programs, is to ensure that you have those check boxes for your jurisdiction. One of the lawyers had suggested, and I thought it was really good advice, this is sort of a CYA proposition. We’re lawyers, so we look for the worst case scenario. Pretend that you’re going to get sued. And if you got sued, what documents would you want in place to protect you? And not only do you want to have those checklists, but what one of the lawyers in this panel suggested was, you want to ensure that every day, those are checked off and that they had been completed.

Niki Black:

It sort of reminds me of like, when you go to Target or a public bathroom somewhere, they have the list of the person checking off at two o’clock. They came in and they wiped everything down. His point was, it’s not just important to have those policies in place, it’s also important to have documentation everyday showing that whoever was responsible for implementing those policies checked off the time and date that they implemented them, so that you have documentation sort of a CYA, just like we do on our files. This is why we like to write letters confirming what we’ve talked about with our clients. You have this folder full of documentation that you’ve complied with all of these. I’m certainly saying that you need to also comply with them. I’m not suggesting just to have a folder full of this, but that you comply with it.

Niki Black:

Not only that you have those in effect, but that you show that they were done every day, by which person and at the different times that they were done. And that’s just a way to make sure that if there is litigation, you have covered all of your basis to help prepare you to defend yourself, should there be litigation that isn’t somehow shielded by statute. Those are some other things you want to keep in mind. And then when it comes to creating these written protocols, you want to have protocols that address recommendations or requirements for face masks for employees and clients. You want to not only have the protocols written, you want to post some signs and I’ll talk about that more thoroughly, but it’s like any store that you walk into. I’m assuming everyone’s in New York and I shouldn’t. Where I live, all the stores require masks and they have it posted there.

Niki Black:

I know that other jurisdictions are not because it’s a statewide mandate from Governor Cuomo. You want to have recommendations or requirements for face masks that comply with your jurisdictional requirements, your region’s requirements. They have to have written protocols that this committee creates or procedures for any daily health assessments that are required, whether that’s a temperature check, whether it’s a self-assessment. You want to have processes in place to ensure that employees are maintaining good hygiene, regularly washing their hands, and social distancing. You want to have those processes in place, reminders of those processes at relevant locations throughout the firm, just like employees have to wash hands before returning to work. Put those up, even though you’re not a food service.

Niki Black:

You’re probably going to want those there. Rules for the regular cleaning and sanitizing of the office. And like I said, not only should you have those rules, you probably want to back them up with checklists every day that show that they were actually implemented when and by whom and rules that limit the capacity of rooms in the office to comply with social distancing guidelines. So, that means that in the conference room, you can only have two people, three people at any given time, depending on how large a conference room is, and that everyone has to socially distance. That you open windows, that you have fans. A lot of the new knowledge about COVID that was not available when I did the presentation a month ago, was that it may be aerosolized. And so a lot of it has to do with the movement of the air and dissipating the aerosolized COVID in the air.

Niki Black:

You also want to keep that in mind when it comes to the rooms and whether you can open windows. And you also want to make sure that everybody’s separated where they’re working so that no one’s sitting right next to each other. You’re also going to, and we’re going to talk about this more fully in a minute, but there’s a lot of different things you can do in your office right now just to comply with COVID. When I talk about some of those office revamps, I’m also going to highlight some of the ones that you can invest in now that are just going to help down the road generally speaking, whether COVID comes back or whether there’s some other pandemic. It’ll just help in terms of sanitizing your office and making it cleaner down the road for issues like this, that will be an investment for the future. Let’s talk about preparing the office. There’s a lot of different things that you can do to prepare your office for the return to the office.

Niki Black:

First, when you develop those guests and visitor policies, you need to limit and restrict access to the office as deemed necessary by non-employees. To the extent possible, continue to conduct video meetings if you can. To the extent possible, you need to have some people working from home so that you can have social distance in your firm. And one thing that some lawyers have told me is that they’ve found that certain paralegals and secretaries have actually been incredibly productive from home. You, for any number of reasons may want to consider letting them work from home a bunch of different days a week. Staggering who’s in the office on different days, that’s what’s happening in the school districts here, all the proposed plans. Half the kids are in school on certain days, the other half are on other days, so that they can implement this social distancing.

Niki Black:

You may want to do that within your firm, and also consider allowing some of those employees to work from home for the remainder of COVID and possibly beyond that, especially because they’re going to have childcare issues because a lot of childcare are not open. They’re going to get shut down if there’s a COVID outbreak in their childcare. Sometimes their caregivers are not available. They’re going to have those different issues as well to deal with, in addition to care-taking for someone who might be sick. If they can work from home and still be productive from home, then why not let them? You’re going to also need to decide how you are going to get packages delivered? What are the requirements when someone comes to deliver packages? What do you expect from them?

Niki Black:

One thing that a lot of firms have been doing is limiting who can come in, when they can come in, they closed down their waiting area, so there’s not a waiting area. A lot of firms have been just taping off their communal areas like the water cooler or the break room. They’re just not letting anyone even use those areas because it reduces the people spending a lot of time in those spaces, touching all the different areas in those spaces. And it just reduces the cross-contamination that you’re going to experience in your firm. Another thing that people are doing is having one way if possible, one way arrows for different hallways. So, you can only go one direction in that hallway.

Niki Black:

And when it comes to visitors, like clients coming into the office, they have one path to take them to the office into that conference room that provides the least amount of interaction with anybody else. One of the lawyers on the panel that I was on what they did was they actually had a separate entrance to their firm that they never used in the back and they opened it up. That’s where they would have visitors come in and go right into the conference room. They started using this second entrance that was very close to the conference room to have the least amount of interaction with visitors and clients when they came in for their safety and for their employees safety. You need to really look at the space.

Niki Black:

One attorney on the panel said that when he walked into his law firm, he started as if he were a visitor. And he thought about everything that he would touch as he entered that firm. He looked at it from a visitor’s perspective, the door handle, are there pamphlets out there, are there magazines and just took everything out that could possibly be touched. And it made it as much as possible, a touch free environment. Don’t offer water to your … Often people will have people have water out there so that people can get water. Move that away. And it’s going to be a little sparse, and ideally shut off the waiting room. That’s what a lot of people have done. Doctor’s offices, you wait outside and you come in when it’s time.

Niki Black:

You want to keep all those different things in consideration. And those are non-permanent changes that you’re making to your space. You tape arrows on the floor. That’s fine. It’s not going to be a permanent change. In a minute I’ll talk about some of the permanent changes you can make, but those are just some of the things to think about when you’re coming up with guests and visitor policies and reducing cross-contamination and trying to keep people apart, as much as possible. You want to establish office cleaning and sanitizing protocols with schedules and procedures. And as I’d already mentioned, actually mark off when those are done so that you have proof that you’ve done them. But think about them really carefully. Think about all the surfaces, think about the easiest ways to sanitize them and prevent use of them as much as possible, and try to keep people contained to their spaces, their pods, if you will, their office or their desk .

Niki Black:

Have them eat at their desk. Reduce the interaction as much as possible. You also want to manage public access. We talked about that. Limit physical access to only certain areas of the office and indicate what your requirements are. That’s the last one there, post signs around the office. What are the requirements for people visiting your office, put signs in the relevant places, the front door, outside the conference room, periodically throughout the space so that people know, you have to keep your mask on at all times. Install protective shields and barriers. These are some of the more permanent things you’re doing. Just invest in a plexiglass barrier for your receptionist. Everyone has these. It’s not an uncommon thing, even when it’s not COVID. Just invest in one, get the permanent change you’re making, she’s going to be safer, or he. Both physically safer and also safer during COVID also physical, but more from illness.

Niki Black:

Also, by putting them behind that, they’re just probably a little more secure and a mild separation from the public. After COVID everyone’s not going to think it’s strange because they’re going to be used to those plexiglass barriers. You can also get temporary ones, which I know a lot of people have invested in. Another thing in terms of sanitizing that some people have done, is they have invested in little carts. Someone mentioned that you can get very cheap carts that IKEA, and they’re little sanitary station carts, two or three of them that can be rolled around the office that have hand sanitizer, that have Clorox wipes, different things that make it very easy to quickly sanitize and access that if you need it. And then other things that you can do around the workplace include all the touchless things that you can install now that are not going to hurt.

Niki Black:

It’s going to make it seem a little classier for lack of a better word, and also much safer. Touchless lights, you can install the different touchless lights, the smart home, smart office concept. You can have the doors propped open so that no one has to open and shut them and touch them. You can also have touchless water faucets and touchless soap dispensers, and wherever you can install something touchless, do it. It’s one less surface that people have to touch. And it also just, like I said, it’s a little classier. It just makes you go into a nice hotel or you go to certain nice areas and it’s touchless and that’s just sort of a classy feature and it’s also just going to make it safer. That’s a really good future investment, that type of thing.

Niki Black:

And so those are just some of the things that you really need to keep in mind as you’re upgrading the actual facilities in your office. And some of them like just investing in this little cart, you’re not getting that cart long-term, so why spend a lot of money on an expensive station that is often difficult to access? Now, people are trying to get these from office stores and they’re really expensive and they’re hard to obtain because they’re sold out, where you can just get a little cart that costs 30 bucks. It’s temporary. And when you no longer need to be using hand sanitizer constantly, you can get rid of it. Certain things are good investments. Others just cut corners on because they’re not that important down the road. Christie King wants to know if a copy of the presentation will be available. Yeah, we do post the presentation on the blog.

Niki Black:

You’ll get an email after the presentation that will link to both the recording and the slides of the presentation. Next step, employee and client safety. I’ve already covered some of this, but you have to decide who returns to the office and when, prioritize remote work and use necessary technology. I’m going to talk about that momentarily. Stagger their schedules and avoid sharing. I covered those. Have as few people in the office as possible at any given time. Avoid sharing of anything. Don’t have the shared stapler anymore, get everyone their own stapler that needs one. Possibly consider just giving everyone desktop scanners, and printers at their desks. And they can also take those home for remote work. That’s a really good thing to invest in. ScanSnap is a really good one, the Fujitsu ScanSnap. A lot of people like that. It’s reasonably priced and it’s a good work course for that type of thing.

Niki Black:

Provide masks and other PPE. You need to ensure that you have masks available for visitors. If those are the requirements of your jurisdiction in your office. Hand sanitizer, and all of those other cleaning tools should be available like I said in the cart especially, but also just throughout the office. Some people are putting them outside of every door, masks and hand sanitizer to ensure that they’re readily available. Communicate what the employees should expect. Make sure they understand what’s going to happen upon return. Make sure they understand the safety measures you’re implementing for their own good, that you’re thinking about them, that you’re concerned about their safety. Let them feel that you’re not just rushing them back to the office.

Niki Black:

It’s going to be super important in terms of productivity because someone that’s freaked out about all the germs around them is not going to be productive. They’re just going to be stressed out and anxious the whole time. And that’s not a good state of mind to be in, to get things done. Implement all the health procedures that are required by your jurisdiction. Like I said, check the Department of Health site, find a checklist and provide leave as required by law. That’s really important. There’s a post on the MyCase blog where I talk about federal leave. The states all have their own additional things tacked on to that, but I do discuss the federal leave. You need to make sure that you are providing that as required, that your employees are aware of it, that you have postings and that type of thing. That’s also really important. Now, I’m going to move onto the last section of the webinar and that is going to be about technology.

Niki Black:

Let’s do a quick dive into the technology. The technology you need for remote working. There’s three types of remote tech that you’re going to need. The ability to conveniently access your law firm’s data online through an internet or data connection. The ability to securely transact, conduct those transactions that are important for your firm, especially getting paid and easily communicate with your colleagues with your clients, with co-counsel with the court. You need to have all of these in place, opposing counsel, obviously as well. For online access to firm data, you need a secure, centralized online storage location for the client data. This can be Dropbox, as simple as Dropbox. Definitely pay for Dropbox. If you’re going to go that route, don’t just use the free Dropbox because you’re not going to have the customer support you need in the features including security features. Ideally you should have something legal specific because in my opinion, and I talk about this in my Cloud book from 2012, prior to my working for MyCase.

Niki Black:

All the things I’m saying about technology, just to be clear, these are things I’ve been advocating about since 2008, give or take. You can look back and find my writings on this. I was hired by MyCase in 2012. I’ve said all of these things before I had skin in the game, so to speak. A I am providing these to you with as neutral of a perspective as I possibly can. That’s why I write articles for the ABA Journal because I can provide a neutral perspective. I hope you’ll trust me with that. I would recommend that ideally you have some type of legal software, whether it’s legal document software, whether it’s law practice management software for the centralized storage location because when you have a company that provides software specifically for lawyers, they understand your needs, your concerns, the security and confidentiality issues, more than a consumer-based company like Dropbox, for example.

Niki Black:

When you have the secure, centralized, online storage area for client data, you can access it from any device, from any location. All your information is there; contacts, your calendar, your documents, your communications, all of your payment and invoicing information. And it’s permission-based access to that data. What that means is that you decide what the person who’s logged in can look at. When you’re using a VPN or remote access tools, that person has access to your entire law firm system and all the data stored there. With cloud-based software, you can only give them access to certain parts of your system. All the information relating to one case, for example, or just the contacts or just the billing information.

Niki Black:

When you have cloud-based software, not only are you able to access it more easily and quickly and efficiently remotely, you also can determine who gets access to what, with just the click of a button. You create those settings when you create their accounts or when you give them permission to access certain information. And you also have the ability to securely communicate and collaborate online with other people in your law firm or with co-counsel or with your client, so your client can upload a document that you need, or your client can download a document they previously provided rather than calling you to get access to it. Assuming you give them access to download it. Your client can find out what their next court date is. They can send you a message through the portal.

Niki Black:

All of this information is conducted remotely online and anyone who has even a phone, some people’s clients don’t have computers, but if they have a phone which most do, they can access it in that way, a smartphone. The first step is to have online access to firm data, ideally from a company that provides legal software, not a general company. Again, it just depends on what your firm’s needs are. You want to securely transact. You want to be able to securely conduct transactions that are relevant to your firm. So, virtual notarization, a lot of jurisdictions have implemented virtual note notarization. You need to be able to do that. Oftentimes that means you need to have some sort of video conferencing software to have that conducted online.

Niki Black:

You need ideally to be able to do online intake, that’s going to simplify things greatly. And once that intakes done, it creates a file in the law practice management software, for example, or in a document management tool possibly. And you have a new client case. Online invoicing and payments are also key. The software you use should have this available because you can invoice people online. You can send that invoice electronically, they can receive it. And then if you have online payments set up through your software, you can accept credit card or ACH payments online as well. You can also, once you’ve invoiced it, depending on your software’s features, set up automatic reminders. You don’t even have to worry about the followup.

Niki Black:

Every 30 days, if they haven’t paid, they get a reminder. If you have online payments, credit card payments, make it a lot easier for people to pay, and you can also set up payment plans if your software allows it. If you set up payment plans, some people are crunched for money right now, a lot of people are, but if they just pay a little bit at a time, at least they’re paying you and you still have that going through the system. You’re getting paid and you’re making sure that they are dedicated to continue to keep paying their bills. It’s really important to have all these different tools built in. And then e-signature’s key, if ideally the tools that you’re using have e-signature built-in or available, so that you can have documents e-signed, which is key now that everything is touchless, if you will, now that we’re doing things remotely.

Niki Black:

You really want to have the software that’s going to have all of this available. A lot of different law practice management software programs have some of these tools available. MyCase has a lot of them; E-Signature, invoicing payments, online intake. Virtual notarization is not something that’s conducted through practice management software. You just need your video conferencing platform, typically in most jurisdictions to get that accomplished. It’s really important to have these tools so that you don’t need face-to-face interaction to get these things done, and then communicate with these. And I’ve already talked a little bit about this. Here are the things you really need to run a remote office, now and in the future. If you have these tools available, it means that at any point in time, you can get more work done in the future when COVID is over and done with, if you’re on vacation and you need to deal with something really quickly, or it’s late at night, you need to deal with something.

Niki Black:

You have the ability to do this from home. Secure client portals, which we talked about. Secure collaboration, which can often occur in legal software, document management software, practice management software, Google Docs even. You can collaborate online in one form or another. Video conferencing is key, either Zoom or some other video conferencing platform. Really it’s impossible to get business on right now without that. Texting, ideally you can text from these platforms. You don’t have to share your phone number. You can have a law firm phone number that texts come and go from, and you can store all those texts in that software, so you have a record of them associated with the client matter.

Niki Black:

Voice-over internet protocol. You definitely want to have VOIP instead of a telephone system that is connected to your land line because that’s a huge pain point for lawyers when they had to go remote, was that they needed someone in the office to get those calls and send them on to everybody else. With VOIP, you can do that from any location. If your office only has to go remote again, if you’re using voice-over internet protocol phone system, I have an ABA article on that if you Google that provide you some of those options. Then you won’t have that issue anymore. Online fax is another one. E-fax is one that may have heard of it. At the end of the day, it’s just you don’t need a fax machine. You can send faxes via email and receive faxes via email.

Niki Black:

For the courts that still require them and some law firms still want them. You want to have online fax instead of that clunky fax machine. These are all just tools that you need to communicate with ease during coronavirus and after coronavirus. It’s going to make your life a lot easier if you invest in those now. That’s bringing us up to the end of the hour here. I believe I’ve answered all the questions. Are there any other questions or if not, I think we’re good. I just wanted to let you know that I really appreciate your listening. I know I covered a lot, but I wanted to make sure that I covered everything that you needed to reopen your law firm safely with an eye towards the present and the future. And hopefully I did that. I really appreciate your listening and have a wonderful rest of your Thursday afternoon. Thank you so much.





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