Legal Malpractice Issues in the Time of COVID-19May 18, 2020 – Article
Following the 2008 Recession, the ABA reported an increase in legal malpractice claims, primarily in real estate matters. If the economic downturn from the ongoing pandemic follows the same course, lawyers can expect an increase in legal malpractice claims in the next few years.
The top five areas in which claims have historically arisen are from personal injury, real estate, family law, trusts and estates, and bankruptcy matters. Because the pandemic has impacted daily life for individuals, small businesses, and large corporations alike, the range of cases filed may vary from these regular top five.
Courts across the country have already seen lawsuits filed by nurses and retail workers alleging their employers failed to take adequate steps to provide safe workspaces. Consumers have demanded refunds for tuition, concert tickets, and gyms. Businesses have raised issues with insurance companies they allege are attempting to side-step business interruption coverage. And, as a number of claimed COVID-19 cures are shown to be ineffective (and in some cases even harmful), we anticipate the filing of fraud claims against the companies peddling the cures.
Like this diverse array of claims, we expect the legal malpractice claims made post-COVID-19 to be varied. Despite the variety, practitioners can anticipate and guard against certain risks:
- Substantive Law. When work is slow, it may be tempting to take on cases and matters in substantive areas of the law outside of your regular practice. Lawyers practicing outside of their usual practice area are more likely to fail to know or apply the law properly, giving rise to legal malpractice claims. To avoid opening your firm up to the risk of a malpractice claim, be sure you have adequate time to research and prepare so you know the substantive law for accepted cases, even if they are outside of your usual practice area.
- Missed Deadlines. Each state, along with some counties and cities and the federal government, is treating the crisis caused by the pandemic differently. This disparate treatment is reflected in the way in which courts are handling trial dates, statutes of limitations, and other deadlines. In San Francisco County, the presiding judge’s Implementation Order designates all dates from March 17 through June 1, 2020 as court holidays. Alameda County, California’s Implementation Order also designates the court’s closure period as holidays for purposes of determining deadlines but runs only through May 29, 2020. The State of Georgia is hosting a website with a listing of the many emergency orders: https://georgiacourts.gov/emergency-judicial-orders/. Lawyers will need to stay on top of the various courts’ and other official’s orders by checking regularly for updates to avoid missing any deadlines that could impact their clients’ position. It would also be wise to enter stipulations with opposing counsel, where possible, about the applicable deadlines and due dates in your matter.
- Cyber insecurity. With so many lawyers and staff working from home, the cyber risks increase exponentially. Employees may be tempted, like Hillary Clinton, to use personal e-mail addresses for privileged or confidential information. As demonstrated in the Clinton case, however, most personal e-mail is not protected by the same firewalls and other cyber protections that cover firm e-mail. Furthermore, employees may let their guard down when they are in the less formal “home office” environment of their homes and laptops. In that event, taking some action which compromises the system’s security, like clicking on a suspect e-mail, is more likely. Lawyers would do well to remind employees of the importance of maintaining security and confidentiality for client and firm information even in these unprecedented times.
- Negligent Supervision: It undeniably is more difficult to supervise employees remotely and more mistakes will be made. While the unexpected and immediate conditions imposed by the pandemic will be an element a jury may consider if a lawyer’s supervision is questioned, a lawyer is still expected to provide a reasonable level of supervision. Maintain connections with and review of work by associates and staff throughout the pandemic.
- Contracts. “Force majeure” and other opt-out provisions will get much more scrutiny in the months and years ahead. “Boilerplate” clauses such as these that most lawyers included in their contracts, but few actually thought a lot about, will be criticized as too broad or too narrow, depending on whether the client is trying to enforce or avoid the contract. Talk to clients now to determine their goals and challenges to see if their needs can be met notwithstanding the contract language and pandemic.
- Client Relations. Social isolation along with the uncertainty of individuals staying employed and companies staying in business can create high stress situations that may lead clients to make legal malpractice claims against lawyers, even when unwarranted. Staying in regular contact with a client may alleviate unease and assure the client their lawyer is hearing and understanding their instructions and working toward their goals.
With the pandemic impacting all areas of daily life and the cost of legal malpractice claims on the rise, it is more important than ever for lawyers to take steps to protect themselves and their practices.
In addition to protecting a client’s interests during these uncertain times, it is no less important for lawyers to protect their own mental health. The stress of the pandemic, including concern about potential legal malpractice claims, is substantial. A directory of lawyer assistance programs is available at https://www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/.
Author: Kathryn S. Whitlock (Senior Partner, Atlanta)
Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.