What keeps law firm leaders up at night? The “reply all” button, according to Wheeler Trigg O’Donnell executive director Amy DeVan.
DeVan on Oct. 14 delivered the University of Colorado Law School’s annual Homecoming Ethics Presentation. During the virtual CLE program, DeVan offered an overview of ethical issues that lawyers should be aware of, especially during the pandemic, as well as the professional ethics rules that address these common conundrums.
“Law firm leaders had worries pre-pandemic. That hasn’t changed. But what has changed is how those worries play out in real time. They’ve become more intense in many ways,” said DeVan, who, prior to joining WTO, founded and led Principle Legal Consulting, a consultancy aimed at helping attorneys and law firms comply with ethics rules. She was also executive director of the Colorado Independent Ethics Commission and assistant regulation counsel for the Office of Attorney Regulation Counsel.
According to DeVan, lawyers’ big ethical concerns include conflicts of interest, communication, competence and technology.
“I’m going to warn you in advance that when it comes to technology, I can go down the rabbit hole,” she said. “This is probably what keeps me up most at night.”
Despite the growing importance of technology and cybersecurity, especially in the age of remote work, DeVan noted that, aside from a few comments mentioning that attorneys are required to safeguard client data, the Colorado Rules of Professional Conduct don’t offer much in the way of specific guidance on keeping client information safe and out of the hands of nefarious actors and unintended recipients.
In addition to the risk of hackers, who are “always trying to get better,” she said, attorneys need to be on guard against accidental data breaches and technology risks, such as hitting “reply all” on an e-mail or falling victim to the phishing and e-mail scams that have been on the rise during the pandemic.
“The fact that people fall for those blows my mind, but it happens all the time,” DeVan said. “So the thing I say here is: If it’s not your preteen niece, and it’s not her birthday wish list, nobody needs you to buy an iTunes gift card today.”
Another general rule, she said, is “if you don’t know what data security means, much less how to ensure it, then make sure you’re paying someone to help you who does.”
Attorneys who practice in multiple states or deal with overseas clients must make sure they’re up to speed on the data privacy laws of other jurisdictions, such as the California Consumer Privacy Act or the European Union’s General Data Protection Regulation.
Clients have also been asking attorneys to follow more stringent outside counsel guidelines, she said, including stricter requirements for data security.
The pandemic also requires lawyers to think more carefully about their duty of competence, DeVan said, since the economic downturn might make attorneys afraid to reject new clients or opportunities. Other attorneys might feel bored during quarantine and feel the urge to branch out into a new practice area.
“You can take the case. But should you?” DeVan said. “There’s temptation to take any case that walks through the door. And I think a lot of times, that’s driven by a fear that another one might not be right behind it.”
She advised attorneys to slow down, avoid dabbling and to think about whether they have the resources and experience to handle a given case. COVID also requires attorneys to consider whether they can competently handle a legal matter while working remotely, which can be difficult or require extra resources if a case is document-heavy, she said.
DeVan urged lawyers not to let their guard down when it comes to conflicts of interest. “The desire to keep business flowing is understandable. But now more than ever, conflicts are important,” she said. Under Rule 1.10 on the imputation of conflicts of interest, there are certain instances where if one lawyer in a firm has a conflict, all lawyers in the firm are conflicted, DeVan said, and “that’s always shocking to people and unwelcome news.”
However, many conflicts may be waivable, she noted, as long as the attorney reasonably believes she can provide competent and diligent representation and obtains the written, informed consent of clients.
DeVan emphasized the importance of proper communication with clients — even the troublesome ones. “Every case that I had at the Office of Attorney Regulation Counsel ended up having a lack of communication at its core,” she said, recalling one case in which a client accused an attorney of stealing money. It turned out the attorney wasn’t stealing but had failed to explain to the client the process and timeline for receiving settlement money.
Sometimes attorneys have to deliver bad news, DeVan added. But “knowledge is power,” she said, and knowledge can prevent clients from falling prey to unscrupulous actors who make promises they can’t keep about their legal matters.
Finally, DeVan talked about what she called the “intangibles” that accompany times of extreme stress: depression and isolation, substance abuse and addictive behaviors. Even before the pandemic, lawyers were at high risk for these problems.
In addition to being difficult for the attorney, she said, depression, drinking and substance abuse impede the ability to effectively and ethically practice law.
“We need to be looking out for each other, and we need to be figuring out how we can still have contact and touch points and look out for each other when we’re not together,” DeVan said, adding lawyers should look out for signs their colleagues are suffering, including changes in appearance, mood, performance, personality and increased anger or agitation.
She cautioned attorneys not to step into the role of doctor or therapist but to refer struggling colleagues to the firm’s employee assistance resources or other professional help.