Create a culture of compliance

Too often, attorneys have blinders on when it comes to fulfilling their duties and obligations. Attorneys wrongly assume that, so long as they fulfill the ethical obligations owed to their clients, other attorneys and staff will follow suit. This approach creates risks, as the individuals within a law firm may not have the same knowledge of the many unique ethical and legal obligations owed by law firms to clients.

To avoid these risks, law firms can actively engage with employees to ensure that all are knowledgeable regarding their obligations and understand the serious ramifications of any breach of those obligations. Indeed, while most firms face ethical issues or even allegations of malpractice at one time or another, many mistakes that lead to such claims can be avoided simply by educating employees and implementing adequate procedures.

Most importantly, firms can recognize that the attorneys cannot operate independently of employees or simply assume that the employees will act in a manner consistent with ethical and legal obligations. Below are some tips that can help reduce the likelihood of wrongdoing by attorneys and staff within a law firm.

Encourage Reporting

Law firms should try to avoid only learning of problems until after the issue has turned into a bar grievance, legal malpractice claim, or other potential exposure. Often, attorneys and staff within the law firm are aware of the issue or potential issue but fail to inform law firm leadership at a time when the problem can be addressed or the damage mitigated. The key for law firms is to create a safe space for people to identify and self-report errors while still allowing the firm to enforce its standards of conduct.

One important aspect of early reporting is that 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 firm should strive to create a culture where staff and attorneys don't fear reporting. Indeed, the firm has as much interest in identifying and mitigating errors as does the employee.

To create this culture, law firms can encourage attorneys and staff to report any suspected or observed mistakes to the firm's general counsel, with an emphasis on over-reporting issues even if the problem does not appear serious at the time.

There are additional risks to the firm if it is not informed of potential mistakes or errors. For example, 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. Thus, unless the policy has a strong "innocent insured" provision, a law firm could inadvertently risk its coverage if attorneys and staff do not communicate their concerns.

Law firms should also emphasize that the primary goal of reporting is not to punish attorneys and staff after potential errors are reported. Employees often are concerned that they will get in trouble for reporting their own errors and instead hope that the problem will just go away. By accepting that errors will happen, law firms can reduce their own risks while also taking steps to prevent such errors from happening in the future.

Train Employees

While attorneys in many jurisdictions, including California, are required to take continuing legal education courses, staff members may not similarly have opportunities to stay informed regarding developments in the law affecting issues of professional liability and ethics.

For example, employees may not know the risks posed by phishing emails or even how to identify such emails, but if an employee opens one, it could expose the firm to serious loss or risk.

Holding regular educational sessions on these and other issues can add to a law firm's reputation in the eyes of clients and be helpful when it comes to purchasing insurance. Some law firms simply include helpful tips to staff and attorneys in email format. This is a helpful step because some insurers reduce premiums or provide additional perks to those firms who show evidence of taking their ethical obligations seriously.

Promote the Use of Vacation Time

The practice of law is notorious for producing high levels of stress and for leaving attorneys and staff with little personal time. Therefore, law firms have an interest in encouraging their employees to use vacations as a way to recharge and ensure that stress or burnout does not affect performance.

Indeed, even if it seems that a vacation is impossible given the tasks needing completion, an employee who does not take adequate breaks is more likely to suffer from stress or depression, and is also more likely to make a preventable mistake.

An ancillary benefit of encouraging the use of vacation time is that it can help ensure that the firm is running smoothly. Having another attorney or staff member fill in during a vacation can help check the work of the employee on vacation to confirm that no mistakes have been made and that processes are running in an effective manner. The key for law firms is to enact adequate protocols are so that no tasks are overlooked while the employee is away.

Law firms taking the above steps can ensure that employees have the necessary knowledge and capabilities to perform their jobs in accordance with legal and ethical requirements, thus limiting risks for the firm.