Communicating with clients and colleagues during COVID-19

Speak to a risk management specialist in just about any industry, and they will tell you one of the best tools to prevent claims is to establish good relationships. Speak to just about any relationship expert and they will tell you that one of the keys to strong relationships is communication. Both of these concepts hold true in the practice of law.

But there is a natural hurdle to establishing and nurturing relationships during a pandemic, especially one that promotes social distancing and results in virtual practices where lawyers are seldom in the same building, let alone the same room, as their clients, colleagues, and co-workers. That dynamic makes communication simultaneously more difficult and more important.

Communications with Clients

Regardless of what may be going on in the world, the rules governing lawyers’ conduct does not change. That means, even in the middle of a pandemic, there are still the same allocations of authority between lawyers and their clients and the same duties to communicate. But understanding what clients’ objectives are and keeping them reasonably informed about the representation have some unique challenges.

Let’s start with the premise that lawyers are not universally trusted, even by their own clients. One aspect of communication that naturally permits people to feel at ease is body language. Regardless of whether we recognize distinct gestures or poses as providing meaning to us, they assist with the communication, including by letting the other person know that we are interested, that we are concerned, that we are uncomfortable, or various other emotions that we do not necessarily express with our words.

Even video chatting denies us a great amount of this communication. We may be able to discern facial gestures — though even that may be subject to variables, such as the quality of cameras, monitors, lighting, and internet connections. But we lose out on most of the body language, including hand gestures and postures.

What this means is that it is important to take time to develop client trust, to ensure that they feel comfortable discussing the matter with you. That way, they are more likely to provide you with the information you need to represent them and to ask you questions that they might otherwise feel reluctant to pose. Part of this also entails figuring out each client’s preferred way of communication. Sometimes that may align with yours, sometimes it won’t. Whereas confirming important communications in documentation will always be a hallmark of good lawyering, determine whether your message is best received through mail (including email), phone, video calls, or something else. The important things are that the message is heard and that you take reasonable steps to keep the communications confidential. At the same time, make sure that you are able to hear what your clients need. Since you may not be working from your regular office every day, let them know how to reach you.

To this latter point, be sure to take precautions, such as those we have previously discussed. Avoid conversations in situations where people outside the attorney-client relationship may listen in. This could mean, for example, making sure that your video-conferencing software has limitations on who may enter a room, using a VPN and encoding to transmit electronic communications, making sure that any physical mail is being sent to a location where the client is regularly, or merely remaining out of your housemate’s earshot when making a call.

Lawyers also have different types of information to communicate during a pandemic. One of the obvious ones is that litigators should be monitoring courts in the jurisdictions where they have matters pending and advise their clients about how expected timing. Clients may not appreciate the impact that the pandemic has on court functioning, including as it relates to jury trials. And the impact will be felt more heavily with civil matters, which will be a secondary priority to the timely hearing of criminal matters. And regardless of your practice, it is likely that you will both receive and be expected to extend more courtesies than usual during this time. It is important for clients to understand this as well. Accordingly, these discussions will be important to manage client expectations and to provide sufficient information to determine whether alternative dispute resolution may be a more attractive option.

Lawyers should also contemplate the potential impact that the pandemic could have on their ability to practice. Particularly those who work as solos or in relatively small firms will want to consider not only their succession plans in the event of a sudden change in health, but also communicating that plan to their clients, including who will contact the clients, so the clients know what to expect. Of course, the lawyers should also confirm that their backups remain available and willing to assist.

On the flip side, lawyers should anticipate that their client’s health could become impacted and that the client may fall out of contact, with their legal matter being less of a priority than immediate health concerns. Lawyers should consider discussing with their clients what should happen in such circumstances, perhaps simply by designating a backup person to reach out to the lawyer or for the lawyer to contact if the client does not respond for an extended period.

Communications with Supervised Persons

Rules of Professional Conduct 5.1 and 5.3 require that lawyers with managerial authority take reasonable efforts to make sure the firm has measures designed to assure lawyers and nonlawyer employees of the firm will comply with ethical obligations, and that lawyers take reasonable efforts to ensure those who they supervise follow the Rules. Though these are newer requirements of the Rules, they are not new concepts. What this means in practice is usually some combination of education, instruction, oversight, and assistance.

For the same reasons that communicating with clients is more difficult, so is supervising and communicating with a firm’s internal team. Of course, the same tools are available. But there are several things to consider that may arise from a working environment where lawyers are physically separated from those who they supervise.

Perhaps the biggest issue is having an understanding of what others are doing. There is perhaps an increased importance to regularly check in, and likely not relying exclusively on email. Again, more personal contact will more likely yield to a higher likelihood that you can learn how they are doing and to assess whether they are fatigued or strained — and, therefore, more prone to error. If you use video conferencing, you can also see your colleagues’ teleworking environments, and observe whether it is appropriate. This does not have to be a one-on-one activity either. Practice groups can have check-ins with one another, which may also help to develop esprit de corps.

Management should be routinely communicating about the law firm’s polices, including those related to telecommuting, updates on how the crisis is impacting the practice of law, and any other relevant issues. These may include reminders about staying current on billing entries, telecommuting best practices, changes in the law, or the general practice of law. And, just as the firm may communicate with its clients what would happen if the lawyer became incapacitated during the pandemic, it should discuss internally the protocols for such an occurrence.

It is safe to say that, even though the degree may vary, every lawyer’s practice has been impacted in some way by the pandemic. But one of the best ways to avoid problems in any environment is having strong communications. By making sure that you, your clients, and your team are communicating well, you will greatly reduce the risk of an ethical misstep. 