Risk Management & Ethics
Is Your Staff Putting You at Risk?
Staff members do a tremendous amount of work for your firm, and they interact directly with clients in numerous ways. And by the way, Model Rule 5.3: Responsibilities Regarding Nonlawyer Assistants is in play. So you will be on the hook for any slip-ups they make, right? Right. After all, a staff member’s error or omission can lead to a malpractice claim or disciplinary complaint just as readily as a lawyer’s. And then there’s the damage dissatisfied staff can do to your client base—and, ultimately, your wallet.
Given this, perhaps a few staff-related risk tips are in order.
It’s Important to Stress Confidentiality
First, there’s the obvious—Rule 1.6: Confidentiality. For a law firm to function ethically, client confidences must stay within the confines of the firm. Yet despite this well-known rule, discussions with family or friends that occurred in a public place, or even on a social media site, have unintentionally led to unethical disclosures that, in some instances, have had serious consequences for the supervising attorney and client.
With this in mind, all firm employees (including lawyers!) must understand the need for absolute confidentiality in all aspects of their work. If it’s standard procedure for your receptionist to announce the name of the client in reception or holding on the phone, an exception should be made if other clients are also waiting within earshot. There is a difference between publicly stating that “Mark Bassingthwaighte is here” and “Your 2:00 appointment has arrived.” Staff should also close doors if a conversation occurring in an attorney’s office or a conference room can be overheard by other clients. Also, give periodic reminders to pay attention to who might overhear cell phone conversations outside the office, and to use caution when participating in social media.
Everyone should sign a confidentiality statement during annual performance reviews. True, this document will not insulate you from an employee indiscretion—but if you couple it with a new employee orientation program that addresses confidentiality, it will reinforce the message. It will also provide concrete evidence of your firm’s ongoing efforts to preserve client confidences, and that can prove useful in mitigating damages should a claim ever arise.
If They Act on Your Behalf, You Are Responsible
Going beyond Rule 1.6, don’t overlook the importance of paying significant attention to proper staff training. This brings us back to Rule 5.3, under which lawyers are to provide appropriate instruction to all staff to assure that their conduct is compatible with the supervisory lawyer’s professional obligations. Consider the following: A few years ago an attorney was sanctioned for the enterprising actions of a paralegal who figured out how to use email to solicit new clients after a local train derailment. Unfortunately, this was a serious rule violation and the attorney’s defense, which included acknowledging he had no idea one could even do what his paralegal did with email, didn’t carry the day.
Firm staff members who have no idea why certain procedures are the way they are often don’t understand the potential fallout from a simple error. Consequently, they are sometimes less diligent and less mindful of their responsibilities when handling specific tasks, such as running a conflicts check or processing the mail in a timely way. When mail sits unopened for weeks at a time or there is a filing backlog of two months or more, you should be seriously worried.
New staff training must always go beyond the how-tos of things like calendaring, file documentation, mail-handling procedures, conflicts checking, proper client communication and billing procedures. Everyone must know the reasons behind the procedures in place at your firm. If someone with calendaring responsibilities has no idea why mis-calendaring a statute of limitations date would be more of a problem than mis-calendaring an appointment with a client, then trouble may be on the horizon.
Training Should Be a Constant
Initial training for incoming staff isn’t enough. Current staff can benefit from ongoing training, too. For example, far too often current staff receive new computers or software and are simply told to “go to it.” Unfortunately, even highly competent staff can make disastrous mistakes when they have no idea how to properly use the new tool just dropped on their lap. (I once unintentionally deleted an entire corporate database because I wasn’t properly trained.) When it comes to technology, many firms provide minimal or no formal training, apparently preferring to pay for trial-and-error learning. This can prove to be a costly misstep. An up-front investment in training will reduce the time staff and attorneys spend coming up to speed, reduce the likelihood of errors during the transition, and allow the firm to reap the return on the investment as quickly as possible.
Taking this staff training idea further, consider conducting an annual firmwide discussion of confidentiality, conflicts checking procedures, and professionalism in client communication and presentation. It’s not only a good way to remind everyone of the importance of these issues, but it’s a way to encourage staff to renew their commitment to performing their duties with the highest level of professionalism. Also, I strongly encourage periodic firmwide training on network security and the latest developments in social engineering attacks. It takes just one innocent misstep while participating in social media or having someone open the wrong email—and a hacker is in!
Try not to overlook the importance of cross-training. There is a serious downside to training people on only one specific task or area of responsibility. Positions with significant responsibilities, such as conflicts checking, central calendar maintenance, accounting and billing, and even office management, should have at least one other person capable of handling the tasks if the primary person is ill, on vacation or leaves. Serious repercussions can occur when a significant amount of intellectual capital walks out the door after just a two-week notice. You simply will not have enough time to capture it all—you may not even know just how much you’ve lost until it is too late.
Include the Entire Firm from Time to Time
Finally, do not underestimate the importance of including the entire firm in periodic firm meetings. With these meetings, you might review the firm’s central calendar, determine how upcoming absences will be covered, review the distribution of work assignments, or discuss the impact of upcoming significant tasks like a trial, preparation of a major brief or a network upgrade.
These meetings can give a big boost to staff satisfaction, too. Satisfied employees are going to be more productive, stay longer and have fewer sick days—all of which will directly affect the bottom line. When encouraged to discuss problems, share ideas on how to improve a service, or asked to provide possible solutions to office problems, staff often respond by feeling more valued: They have been asked to meaningfully participate in the operation of the firm, and you are giving them an opportunity to personally invest in their careers.
Dissatisfaction Is Infectious
One last thought. Don’t overlook the potential impact that dissatisfied staff will have on your client base. If staff members feel depressed, overworked, undertrained, taken for granted or just dissatisfied in general, it is obvious to others. Imagine the message clients are receiving! Why create an environment that fosters this? We all know that client dissatisfaction increases the risk of a malpractice claim or disciplinary complaint, not to mention lost revenue due to lost client referrals and repeat business.
Every member of your staff can prove to be a valuable resource for your firm if you give them the opportunity, and treat them as such. While the rules may not require it, from a business perspective it certainly seems warranted.
Mark Bassingthwaighte is a Risk Manager with Attorney’s Liability Protection Society, Inc. (ALPS). In his tenure with the company, he has conducted over 1,000 law firm risk management assessment visits, presented numerous CLE seminars, and written extensively on risk management and technology. Mark received his J.D. from Drake University Law School. He blogs at ALPS411. Contact him at email@example.com.
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