Non-lawyer staff members can put your firm at risk just as much, if not more, than any attorney. Negligence, breaches of confidentiality and bad client interactions on the part of secretaries, receptionists, docket clerks, accountants or others can be the basis of professional liability.
At the same time, staff members also often represent your first beacons of potential trouble and the avenue through which your risk management systems are used best. They are the ones who set up and maintain the conflicts database and the conflicts review system. They get things to court on time, keep the calendar, send out the bills, keep track of evidence and run the closings.
Almost always, risk management materials are directed at and presented solely to lawyers. But it is equally important that the non-lawyer staff in every law firm understand the significance of risk, risk management and the firm’s commitment to practicing smartly.
Some risks presented by staff
Two of the most common sources of professional liability for lawyers are administrative mistakes and clerical errors. Some of these are committed by attorneys when they communicate information incorrectly to their clerical staff, or they fail to react to warnings on their calendars. Other times, deadlines are missed when staff input data incorrectly into the computerized system or misinterpret a scheduling order, computerized warning or some other time-sensitive system.
If consistency and accuracy are essential to the success of such risk management systems, how can it be that staff members make such mistakes? Sometimes, the problem can be traced to heavy workloads. When staff doesn’t have enough time for proper reflection and review, they can be less vigilant, especially while doing very familiar tasks. Other times, mistakes are caused by poor attitudes, misuse of the systems or misunderstanding of processes and requirements. While it’s easy to blame the individual staff members for their failures in those situations, the root cause often can be traced to poor training or supervision.
Another area of high risk involves confidentiality obligations. The rules are as strict for staff as they are for attorneys, with the same risks connected to breaches of confidentiality no matter who reveals the information. In my experience, many attorneys don’t fully understand the scope and nature of their confidentiality obligations — so, it is safe to assume that non-lawyer staff understands them no better, and perhaps even less so.
Confidentiality rules can be complicated and difficult for anyone to adhere to, especially lawyers and staff in larger law firms. In general, everyone working in the same law firm can share confidential information with everyone else in the office without breaching ethics rules. The bigger the office, the more people we can "legally" share information with. We get used to talking with our colleagues about what we’re doing: who’s working that big transaction; what client so-and-so had to say yesterday; what’s going on this week in the big trial for ABC Company. But, that easy sense of sharing and conversation can hurt when it is carried over into the lunch hour at the local diner, or on the bus on the way home, or when there are other clients in the hallway.
Communication is the key
Believe it or not, many staff members are unaware that lawyers can be sued for malpractice. Maybe even more surprising for some is the fact that the entire firm — staff included — can be subject to malpractice claims stemming from actions taken by staff members. So, the first step toward integrating staff into your risk management strategy is to explain the importance of risk management and the potential pitfalls they face. Such conversations will help establish a sound foundation for encouraging and maintaining a good risk management attitude throughout the firm.
Communication — what you say and how you say it — is the key component to gaining alignment and support from staff members.
Provide context. Although staff are integrally involved in the risks and the risk management in every firm, too often there is a gap in terms of the information the staff is given. We tell our staff to do certain things, but we don’t tell them why. We don’t explain the risks or make the connection between what we ask them to do and the risks that the process is intended to address. This is a particularly bad practice because much of what we ask the staff to do is, frankly, mundane and tedious. But, at the same time, accuracy and thoroughness is essential to success.
Any system is only as good as how well it is used. If we are counting on non-lawyer staff to perform at high levels these extremely important, precise and tedious tasks, we do best to motivate them by giving context to those tasks. This means more than just saying, "If you don’t follow these procedures, you could end up revealing confidential information to someone who ought not to hear it," or "You could end up losing evidence or missing a filing deadline." Take the time and effort to help staff understand that they are helping you do your best to respect and protect the clients’ rights, as well as helping to protect the firm against lawsuits for malpractice.
Use common courtesy. Lawyers’ careless and disrespectful attitudes toward non-lawyer staff do little to motivate staff to give anything other than cursory attention to the tasks at hand. Always take the time to say "please" and "thank you" to your staff. Acknowledge that they are taking time out of their lives to do what you are asking them to do (even if you are asking them to do things only on company time, you are still asking them to choose your request over anything else available to them at that moment). Common courtesy goes a long way. Promote politeness throughout the office; if you treat each other agreeably, everyone is more likely to treat clients better, as well.
Train lawyers how to work with staff. Some lawyers may be younger and less-experienced than their secretaries and may be timid about asking for assistance. Others may come across as arrogant or condescending because they’ve never been instructed in how best to work with subordinates. Include segments in orientation sessions on how to work with a secretary, how to supervise the work of others and how to successfully explain assignments. Consider using an experienced staff member as the leader of such sessions.
Promote discussion and recognize efforts. Thank your staff for asking questions and encourage them to speak freely with you about administrative issues. By establishing these issues as fair conversational game, your secretary likely will be less afraid to speak up the next time she listens to a client growl about how you never seem to return phone calls in any reasonable amount of time. When she does speak up, thank her for doing so. And then follow up, even if she brought you bad news. Always follow up any suggestion or comment from your co-workers, even if it is only to say that you’ve thought about what the person said and decided to take a different track. And if you do decide to implement someone’s suggestion, say so — begin the memo regarding the new procedure with the words, "in response to your concerns," or "at the suggestion of," or similar statements. Just those few words let everyone know that you do listen when they talk, and greatly encourage further communication.
Stress importance of confidentiality. One of the
most effective ways to help staff comply with confidentiality obligations
is to explain to everyone this duty’s importance to the client and to
the legal profession as a whole. Don’t just tell your clerks not to reveal
clients’ names outside of the office, but rather, discuss how a lawyer’s
duty of confidentiality protects those clients’ rights. Explain that
our duty of confidentiality is at the essence of the profession. It is
what makes a lawyer a lawyer. And explain that by respecting that obligation
and making concerted efforts to avoid inappropriate disclosure of confidential
information, the non-lawyers in your office are upholding an ethical
code that goes beyond claims avoidance and protection of the bottom line.
Most lawyers understand the transcendent quality of our ethical obligations
of loyalty and confidentiality and find motivation in that spirit to
work hard to live up to those responsibilities. Non-
lawyers can capture that feeling as well and will be better partners in your overall risk management efforts if you give them an opportunity to be included in that sense of importance and responsibility.
Finally, don’t overlook the value of your staff as your first line of risk detection. Your staff often has more regular direct contact with your clients than you do. Remember, they are the ones answering the phone when you’re not there or are too busy to answer. They often are the first ones to hear clients’ complaints or frustrations. If your staff is comfortable coming to you and reporting these concerns, you’ll have a better opportunity to try to nip potential trouble in the bud.
Every lawyer is better with good, dedicated staff. And every lawyer should include that staff when thinking about and implementing risk management in the firm.
ABOUT THE AUTHOR
Emily J. Eichenhorn is the director of lawyers’ risk management for CNA, a lawyers’ professional liability insurance provider. Eichenhorn lectures and writes regularly about law firm business management, risk management and professional responsibility issues.
© 2004 Emily J. Eichenhorn