Center For Practice Management, Ethics, Management

Expecting the Unexpected

By Catherine Sanders Reach and Roberta Tepper

When lawyers hear the term “succession planning”, many automatically think of planning for retirement or closing a practice due to death or disability. But succession planning encompasses far more than closing. A robust succession plan should include a plan by which the practice or firm can continue to operate notwithstanding seemingly catastrophic changes—it should include a plan for business continuity.

In the wake of the almost unprecedented life disruptions brought on by the global pandemic, law firms of all sizes, from solo practices to the largest of firms, have experienced another kind of challenge. Lawyers, like individuals in a variety of professions and vocations including legal paraprofessionals and those in administrative support positions, are making different life choices—and some of those choices include just walking away. 2021 was the year of the Great Resignation. People in all walks of life opted to not return to the jobs they held, sometimes for years.

When this happens in a law firm—when longtime associates, partners or administrative support staff walk away—it can take the practice or the firm by surprise. Even more challenging to the survival of the practice is when an employee’s decision to quit comes with little or no warning. These precipitous departures can create a vast emptiness where institutional knowledge once existed. Small firms may find themselves virtually gutted by the departure of even one lawyer—the smaller the firm, the more likely this departure will be disruptive. While one might hope that an appropriate period of transition will be possible, the sudden life epiphanies we are seeing play out in legal—with the corresponding willingness to just quit—make that unlikely.

So, what is a law firm to do?

The only answer is that law firms must expect the unexpected and appropriately plan for it. It may be too late this time, but it is never too late to adapt and plan for such events next time. Sure, you might be thinking, that’s easy enough to say but it’s difficult to do. Sadly, for law firms to survive these disruptions, there is no other choice.

Creating a strategy for survival

If your practice is robust enough for you to employ administrative support staff, chances are that you’ve delegated several responsibilities to those vital employees. That’s great for the day-to-day practice and your ability to focus on law, not running the business. But if your longtime assistant left, would you know all the systems they have created to make your practice tick? Chances are, the answer is a resounding no.

It need not be that way. All law firms should have a policy and procedure manual—and for continuity, we are talking more about procedure manuals. The operational manual of your firm should contain details of each business practice and procedure needed both in the day to day and overall. Creating this documentation takes time and will not happen organically unless you, as your firm leader, make it a priority and dedicate sufficient time to yield a guide that can allow almost anyone to pick up that manual and perform the tasks essential for your business.

The same is true for managing every client matter your firm handles. Sure, each case is somewhat different; sure, each client is unique; sure, the practice of law cannot be reduced to an automatic process—well, not totally. But creating protocols for client and case management consistent throughout the firm can make the difference between keeping your practice afloat after an unexpected departure and the practice sinking.

Creating consistency

As practice management advisors, we have routinely advised lawyers to utilize the technology available to create efficiencies. This may include practice management software, automation tools or customer relationship management platforms. To create consistency, this effort must go deeper. Digging into the weeds and creating policies about how everyone deals with information from the simplest phone call, to docketing, to how often emails are dragged and dropped into your electronic file—this is needed.

While we hope that most lawyers have embraced the concept of a paperless, or paper-on-demand, practice, we are realistic. For those who cling to paper files, having consistently enforced policies about what goes where, which divider or backer in the client file is used for correspondence or minute entries, etc., can make the difference if a new lawyer must step in on short notice. Having a guide that tells that new lawyer—perhaps even one employed temporarily—where the information they need may be found will prevent you from having to unearth and collect randomly stored information. You paperless lawyers, don’t feel smug. We see many lawyers without consistent practices on the basics; their electronic files may be spread across a variety of programs, apps and storage locations. Putting together a comprehensive client file will take valuable time you do not have when trying to manage disruption.

Using technology to help

Whether guarding from unexpected departures; establishing control of best practices for long, strong, unique passwords; deploying multifactor authentication; or having the ability to easily change passwords or check the dark web for password exposure, a class of tools called password managers are essential in today’s law office. An enterprise or business password manager is maintained and monitored by a firm administrator or IT department—or in small firms, the attorney owner. Using the password management system can somewhat be enforced, though a policy requiring its use is recommended. Each user can create unique, strong passwords for logging into firm assets like legal research, practice management and accounting systems. Users can change these passwords with a few clicks if there is suspicion of compromise.

Most of the business password managers also let users create shared password folders amongst user groups. Many also give employees their own personal vault for logins that are not firm resources.

In the event of a sudden or unexpected departure, an administrator has access to the person’s login information and can change their passwords to keep them out of the systems, including the password manager. Even if the person printed out or wrote down their logins, these will no longer function thanks to the business password manager. Business password managers also have single sign-on options, further reducing access to the password manager if a person has been removed from the active directory.

Many of the business password managers also provide a 30-second expiring second factor of authentication that does not rely on the individual’s cellphone for a text message. The less the firm’s security is tied to an individual’s personal property— like when a two-factor authentication code goes to their personal cellphone—the better. Some business password managers like LastPass include even more sophisticated features like geofencing, which prohibits logins from outside set geographic boundaries.

There are many business password managers on the market, but Dashlane, LastPass, Keeper and 1Password consistently rank at the top of the lists. These tools are easy to use and relatively inexpensive.

Practice management solutions

Another technology that can be helpful in contending with an unexpected departure is a fully utilized practice management application. Practice management applications can hold correspondence, documents, notes, billing records and more. When everyone in the firm is well-trained and using the application appropriately, if someone leaves, an administrator should be able to see what they have been working on, the progress on a given matter, any calendared items that need attention, outstanding tasks, finalized documents, draft documents, recorded time entries and more.

Some law firms do not use a practice management application, choosing a combination of a time/billing application (or spreadsheets) and software like Microsoft Word or WordPerfect. The more a firm can exert controls that enforce information to be shared by the attorneys and support team, the better. For instance, a firm using stand-alone Microsoft Office software installed on a user’s desktop, a file server and email through nonbusiness systems like Yahoo or Hotmail has little recourse for removing an individual’s access and collecting needed information. Conversely, a firm using Google Workspace or Microsoft 365 has administrative control over the assets. These business applications can be deployed so all files are saved to the firm’s document storage, emails remain under the control of the firm and individuals’ access can be revoked. Using these features might not be a scenario firms want to consider, but they need to invest in business-grade systems to maintain security and confidentiality, and to use best business practices.

Some practice management applications have task and workflow management tools. Use them! If the firm doesn’t have a practice management application or it lacks capability, there are other ways to make sure that activities are documented so you can see if a file has been neglected, that a document was never finished, that the client has received no correspondence or if a filing has passed the deadline. A project management tool can help unearth what has been done. Project management tools range in complexity from simple, like Microsoft To-Do shared lists or Microsoft Planner (both free with a Microsoft 365 Business account), to general business tools like Asana, Trello, Monday.com or ClickUp, and even legal-specific project management.

The hardest part about using project management tools is taking the time to create your project templates. The firm may already have checklists, like a checklist for probate, real estate closings or business formation. Turn these checklists into project templates and the firm can assign and track who has done what and when. A complete workflow template for a matter would include intake to closing letter so the project is monitored from beginning to end.

Coping strategies

In the wake of a disruptive departure, you must triage. Think now about how to prioritize cases and clients. To do this, you need to have your finger on the pulse of your practice. If you are a small practice—one or two lawyers and maybe some support staff—this may be easier. The larger your firm grows, the more cases and clients you serve, the more difficult this is. Reviewing all pending cases regularly is the first step; the nature of your practice will dictate how often this must occur—it could be weekly, biweekly, maybe even monthly, but not longer than that.

If you do this, when an explosion occurs and you must replace a lawyer who left without notice or that litigation paralegal who has been with you for many years, you can better triage and allocate your now-limited resources more appropriately.

©2022. First published in Law Practice Magazine Vol. 48 Issue 3 May/June 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.