Most attorneys know the scope of their duties and obligations to clients. Most law firms, therefore, are comfortable in the fact that their employees—both attorneys and staff—are sufficiently aware of their ethical and legal obligations. However, law firms cannot ensure the proper, ethical conduct of their attorneys through sheer will alone.
Moreover, issues of ethics or even alleged malpractice do come up from time to time for most law firms. Although law firms are often thought of as single corporate beings, the bees in the hive make up the day-to-day structure and tasks of the firm. The firm cannot operate independently of its employees or assume that its employees will always engage in proper behavior.
Nonetheless, law firms can take steps to reduce the likelihood of wrongdoing by its employees, both staff and attorneys. Here are some tips for law firms to help ensure that their employee base is informed and encouraged to act ethically and properly.
The law firm, as an entity, cannot be aware at all times of the conduct of its attorneys or staff. However, the worst time for a law firm to hear about an impropriety, ethical violation or malpractice issue is once the issue has elevated to a bar grievance, a malpractice suit or other exposure to the firm. The key for law firms is in creating a safe space for people to identify and self-report errors while still allowing the firm to enforce its standards of conduct.
If a law firm does not know about an ethical violation or error until well after the event, it may be too late for the firm to correct the mistake or mitigate any potential losses. In addition, an attorney who brings a potential error or failure to the attention of the firm may be able to benefit from the in-house attorney-client privilege between the attorney and the firm. But those protections and abilities to investigate or mitigate cannot be used if the firm is not aware of the disclosure.
The goal is to ensure that staff and attorneys alike do not view the law firm as “management” or “the enemy.” The firm has as much interest in identifying and mitigating errors as does the employee. The question for the firm, then, is how to create that atmosphere of disclosure.
For one, law firms should encourage attorneys and staff to report to the firm’s general counsel any suspected or observed mistakes. By creating a culture in which employees feel comfortable receiving advice from that office, the law firm benefits in the long run.
There are additional risks to the firm if it is not informed early of potential mistakes or errors. A lack of knowledge can put the law firm’s insurance coverage at risk. Under many standard policies, law firms have to report to their insurers when applying or renewing their insurance of any circumstances that could give rise to a claim.
When an attorney in the firm knows of circumstances that could give rise to a claim, that knowledge is often imputed to the firm generally, even if the attorney never told anyone else at the firm of the potential claim. (The possible exception to this rule is if a policy also has an ‘innocent insured’ provision.) Thus, a law firm could inadvertently risk its coverage simply because it did not create an environment that encouraged attorneys and staff to report areas of concern.
The law firm can also inform employees that the firm’s primary goal is not to be retributive when potential errors are reported. Employees often are concerned that they will get in trouble for reporting their own errors and hope that the problem will just go away. By accepting that errors will happen and that the best way to address them is by full disclosure, law firms will reduce their own risks.
Attorneys in many jurisdictions are required to take continuing legal education instruction to ensure that they are abreast of recent developments in the law. Law firms can use those requirements to take the opportunity to educate their employees—both attorneys and staff—on issues of professional liability and ethics.
Law firms should not assume that their employees always know every best practice. Further, there are some issues of potential liability that are evolving with technology. For example, not every staff employee at a law firm is going to know what a phishing email looks like, but if an employee opens one, it could expose the firm to loss or risk. In this example, a law firm benefits by educating its employees on best practices.
People are less likely to make a mistake or intentionally commit a harm if they are educated on the firm’s preference for the proper way to proceed. Having regular educational sessions—whether by email or in formal training—help add to a law firm’s reputation, particularly when it comes to purchasing insurance. Indeed, some insurers reduce premiums or provide additional perks to those firms who show evidence of taking their ethical and educational obligations seriously.
The practice of law is notorious for contributing to burnout. It is a profession known for producing high levels of stress and for encroaching into personal time. Attorneys and staff can get wrapped up in projects, burning the candle at both ends in an effort to comply with rigorous demands. Law firms have an interest in encouraging their employees to take a break.
First, as suggested, taking vacations can help attorneys and staff prevent burnout. Even though task lists continue to grow, an employee who does not take a break will suffer from stress issues and is also more likely to make a preventable mistake.
Ensuring that employees take vacation time from work is also a good way to ensure that firm systems are running the way they should. There have been many scenarios in which a corporation or firm only uncovers wrongdoing by an employee—such as financial mismanagement or embezzlement—once that employee takes a break from the office and is replaced by a temporary employee who discovers that something is amiss.
It is also important that the firm encourages vacationing employees to ensure that protocols are in place for the time in which they are away. For example, an attorney going on vacation should ensure that her or his docket is cleared or handled before traveling out of reach.
No firm wants to think that it could face a problem as a result of an ethical breach by an employee, even if the conduct is unintentional. By taking steps to prevent such a problem, the firm will be better off.
As published by American Lawyer Media