The pandemic has caused rapid changes in the legal profession, and many lawyers are struggling to weather the storm. What can you do to bring your firm through this crisis? In this Digital Edge, Sharon Nelson and Jim Calloway survey the new landscape of legal and discuss what you can do to keep up with important transitions in the practice of law. They share tips for cybersecurity, video conferencing, obtaining financial assistance, and future pandemic planning.
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The Digital Edge
Risky Business: How Lawyers are Navigating Through COVID-19 and the Rocky Economy
Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers invite industry professionals to discuss a new topic related to lawyers and technology. You’re listening to Legal Talk Network.
Sharon D. Nelson: Welcome to the 148th edition of The Digital Edge: Lawyers And Technology. We’re glad to have you with us. I’m Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity, and digital forensics firm in Fairfax, Virginia.
Jim Calloway: And I’m Jim Calloway, Director of the Oklahoma Bar Association’s Management Assistance Program. Today our topic is “Risky Business: How Lawyers are Navigating Through COVID-19 and the Rocky Economy.”
Sharon D. Nelson: Before we get started, we’d like to thank our sponsors.
Thanks to our sponsor Clio. Check out Clio’s Daily Matters podcast for the latest on legal in the COVID-19 era. Listen to Daily Matters at clio.com/daily or subscribe wherever you get your podcast.
Thank you to Nexa formerly known as Answer1. Nexa is a leading virtual receptionist and answering service provider for law firms. Learn more by giving them a call at 800-267-9371 or visit them online at nexa.com.
Jim Calloway: We’d like to thank our sponsor the Blackletter Podcast, a show dedicated to making law exciting and fun with informative interviews and advice from esteemed guests.
We would also like to thank Scorpion. Scorpion is the leading provider of marketing solutions for the legal industry. With nearly 20 years of experience serving attorneys, Scorpion can help you grow your practice. Learn more at scorpionlegal.com.
Sharon D. Nelson: All right Jim, it’s just you and me today. So let’s set the stage for our topic, shall we?
Jim Calloway: Okay, well Sharon, right now it seems like we are living in a science fiction novel, but one that have never been accepted for publication because of the unbelievable plot and outlandish characters.
Sharon D. Nelson: Amen to that.
Jim Calloway: We as a profession are primarily working from home and those who are not are often being forced to return to the office because of what Sharon, paper and the lack of digital client files.
To even attempt to predict the future today is to be accused of political bias. But at this point it seems likely even with the great sacrifices we have collectively made, we’ll be dealing with COVID-19 for at least the remainder of this year and likely longer. So the whole world awaits a vaccine.
Meanwhile courthouses are closed. A direct hit to the finances of courthouse lawyers and it’s really hard to see how many of the things we’ve done for years like large motion dockets and jury assembly dockets happen in a pandemic environment.
Sharon D. Nelson: It certainly is and I think one of the things that we’re seeing is we’re starting to get a clue to our future from the big law firms and what they’re doing and what it means for the rest of the legal world.
And I would say that to put it mildly the slaughter has begun. It began with the pay cuts and then the big law firms began furloughing and laying off people right and left. Bloomberg law in particular has done a really good job of covering this if you’re trying to watch that. I noted that Seyfarth Shaw has reduced its monthly payments to partners by 20% and it’s furloughing 10% of its US employees for 90 days. There’s all kinds of — if you go through these stories it’s just amazing how many people have had reductions in force. We’ve seen that also in the e-discovery world with a couple of major companies having had that happened within the last week.
They basically are saying, the large law firms are saying they anticipate challenges for the rest of the year, no question about that and maybe longer, but it’s the rest of the year.
A lot of summer associate programs are dead. First associate hiring isn’t taking place. People who were supposed to come on in the fall are now not coming on until next year. So it’s just one thing after another.
You know Jim, let me go — let me go one step further there in the DC area, we have seen law firms making 30-day, 60-day, 90-day and 120 day contingency plans, which is pretty amazing, but they actually are staging it differently depending on how long this lasts and how long they can really open again.
And of course, we all remembered the painful lessons of the Great Recession and nobody wants to make the mistakes that we made then and we made a lot of them and that there’s a lot of lawyers that are saddled with law school debts, they’re financially overextended and they are suffering acute anxiety over the possibility of pay cuts or worse layoffs.
And I think some solo and small law firms are worried simply about surviving it. That’s why they have constant angst.
Jim Calloway: You know that we see a lot of transformational events and one thing is that, law firms are traditionally not around a lot of capital, that old partnership model had us dumping all the money out at the end of the year to the partners and then starting off by borrowing money. And I think we’re going to see a lot more financial reserves.
But the big transformation Sharon has to be remote working. I wish I paid attention to who first posted this on social media so I could give them credit, but their quote was, we’re not working from home, we’re hiding from a pandemic trapped with our family often with screaming kids trying to work from home. I think that really, really kind of encapsulates it.
In the show notes we’re going to include a video from our good friend Brett Burney and his wife Stephanie. They’ve got experience that he’s been working from home for several years and she’s been homeschooling their children in the same home for several years and it is a lighthearted talk that really helps us think about what we’re really doing.
But remote working, one thing we’ve seen for sure and Sharon and I are trying not to look at this any way other than objectively, but law firms that paid attention to technology, law firms that sent people to ABA TECHSHOW, law firms that invested in their infrastructure, are doing much better for remote working.
I know there’s some very large firms that really thought they were saving money by buying most of the lawyers desktops instead of laptops, and I’m sure they regretted that decision as they tried to deploy workforce home. I see people in all sorts of environments. I’ve been doing a mini video, videos from home and had my calls forwarded here and frankly, although, I’m not doing any better than anybody else dealing with the emotional stress of this, that working from home part wasn’t that big a challenge other than all my co-workers were also trying to do it, because you and I had a career of working from hotel rooms and all sorts of remote locations.
So I think the lawyers, I’ll say, the small firm lawyers who had practice management software solutions and have scanned everything into their client files as a business practice, they’re way ahead of the lawyers who are having to sneak back to the office in the dead of night or whatever it is to grab some more paper client files.
So Sharon, one thing a lot of lawyers talk to me about and, and it’s an area of your expertise is cybersecurity concerns when you have a remote workforce.
Sharon D. Nelson: Yeah, it’s interesting. All the law firms had said that our recommendations were too expensive and they weren’t going to be able to budget for them. The minute they started realizing the cybersecurity implications of remote working everybody all of a sudden decided that our recommendations were affordable.
So they have done a lot of the things that we were recommending especially endpoint protection and there’s a lot of different forms of that out there, but home machines are a real problem. Anything that the law firm doesn’t own, it doesn’t control. So that’s one of the things they’ve been doing is trying to extend their security from the law firm to the home machines if that’s the situation they’re in.
And the way it is we know that a lot of law firms did not as you said Jim, they didn’t necessarily buy laptops for their lawyers. So they are having to make do with the home machines and that’s, that’s hard, because you don’t know what’s on those machines, you don’t know what kind of security they have, you have no control at all.
So if you have enough licenses and you have endpoint protection of some kind, you want to try to get them under the firm’s protection and if you don’t have endpoint protection, well, that’s a mistake, so you need to fix it.
Needless to say, home networks are notoriously insecure, so everybody who is working on a home network if that’s what you got to do, you make sure your routers have WPA2 encryption. You change the default ID and password on the router. If you can, don’t use your home network at all, use your phone hotspot if you can, that way you’re not competing with the whole family for bandwidth and it’s more secure.
And of course, if you’re working on a particular machine don’t share it with the kids, don’t share it with your spouse. Who knows what they’re doing when they’re on the machine, who knows what they’re clicking on, who knows how they’ll fall for phishing emails and you get something that says hey, your paycheck protection program money is just came in to your bank account, you’re going to want to click on that yourself so you even have to be extra-careful yourself.
And the bad guys and this is something a lot of lawyers just don’t get, they’re not coming after home networks because they want to compromise you, they want to compromise your law firm and they know that the vulnerability is you, so that’s what they’re attacking.
Jim Calloway: We’ve seen lawyers go ahead and buy these MiFi Cards and other hotspots that and sign up for that contract and get them delivered to them, so I think that’s a good idea. But the most entertaining call I had, all that what entertaining for the lawyer was a lawyer who’d really only used his iPad for recreation but was trying to practice law with it because guess what, the kids computer was used for homeschooling.
Sharon D. Nelson: Yes, I can imagine there would be some conflict there too.
Jim Calloway: Before we move on to our next segment, let’s take a quick commercial break.
Sharon D. Nelson: The legal industry is undergoing a fundamental transformation and the Daily Matters podcast is here to give you a competitive edge. In Daily Matters Clio CEO Jack Newton interviews prominent legal experts to explore the new normal for law firms and how you can succeed in a work from home world. To listen visit clio.com/daily or subscribe to Daily Matters wherever you get your podcasts.
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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is, “Risky Business: How Lawyers are Navigating Through COVID-19 and the Rocky Economy”.
So let’s talk a little bit about video conferencing maybe first and then e-contracts. I got to tell you that Zoom, Zoom has got to be just raking in money, lawyers have glommed onto it like nothing I have ever seen and their clients all love it. So Zoom is where a lot of folks are, now there’s — there are a lot of big firms that are on something like Cisco Webex, but the, the solo, small firms they’ve gone directly to Zoom.
The early kicker was that Zoom was under a microscope. It went — I mean it just mushroomed so quickly in terms of its usage and how many people were using it on a daily basis. So there was a little bit of unfair criticism in the sense that all video conferencing solutions do have vulnerabilities and they’re documented.
Zoom-bombing, which was one of the first big sexy stories, that was just user error, but there were a lot of bona fide security problems with Zoom in the beginning and Zoom has been very good about publishing weekly security updates, they’ve really done an extraordinary job in a very short amount of time.
So we definitely — we being John Simek and myself, have definitely concurred that it is now ethical to use Zoom provided that you’ve had some training in it, so you avoid user error.
The one thing we want to see is true end-to-end encryption but that’s not like flipping a switch, it’s going to take a little time but for sure they’re working very hard on it and I’m sure we’ll see it soon.
So let me ask you after that what do you have to say about video conferencing, Jim?
Jim Calloway: Well I’ve thankfully a lot of new external webcam and a new headset as soon as this started, because I had the idea that I didn’t want to use the laptop pinhole camera for the next months, but I will tell you, if you’d like some training on the problems with Zoom, in our show notes we’re going to include a video interview I did with Catherine Sanders Reach called “Zooming in on Zoom” and we also have links to a ZDNet article authoritative source I believe that mirrors Sharon’s belief that it’s okay to use Zoom if you do these ten things. And Catherine did a lengthy post on all the alternatives to Zoom as well as really how to use Zoom in a safe way.
We’re certainly seeing video conferencing use for another level. I guess the thing that is kind of interesting to me Sharon, what if I’d have told you around Christmas that you should sell every stock position you had and put it all in Zoom.
Sharon D. Nelson: I would be the happiest person in the world as opposed to an applicant for a PPP.
Jim Calloway: There you go. But seriously I think the factor about Zoom and even in the ethical rules it says that a security technology that is so cumbersome that the lawyers and clients can’t use it, one of the comments I am paraphrasing of course, is, that’s a problem.
And Zoom is so easy and that’s why some of the problems were, because people were just putting these Zoom links on Twitter and then some trouble maker would log in to disrupt their meeting. But certainly some institutions like banks are hesitant to use Zoom right now, our Supreme Court as to the judges not to use Zoom, because they were concerned about all these articles.
Although really when you read these articles it was like you’d get to the last paragraph. I’m reading a Washington Post article about videos, private videos were compromised, and you get to the last paragraph, it’s like because these people stored them on unsecured sites.
So I don’t think that’s a Zoom issue.
Sharon D. Nelson: Right exactly. There was — there was a lot of that.
Jim Calloway: What about e-contracts?
Sharon D. Nelson: Well you know what we’ve been seeing very recently and of course, DocuSign has been around for a while, Adobe has the ability to do this, but DocuSign is where lawyers seem to be going primarily at least those that we service.
You know the thing that I think is funny Jim is that, as you know I’ve been a lawyer for a very long time and I wasn’t doing e-contracts even though I run a technology company. How ironic is that? But in 24 hours I went from not doing any contracts electronically to doing all contracts electronically and in the first week of business as everybody shut down and had to go remote, we must have sent out 30 contracts via DocuSign in that first week. So, and it’s easy as pie, so I don’t know what was wrong with me that I didn’t do it so much earlier, but for all those lawyers listening if you haven’t done it yet for heaven’s sakes get to e-contracting, it’s where everybody is and it’s the only way you can really operate remotely when you don’t see clients.
Jim Calloway: Gee, a lawyer doing things that way because they’ve always been done that way. I’m shocked, I tell you shocked.
Sharon D. Nelson: Shocked yeah. Well, I give myself a good bit of grief about that Jim. You could well believe that.
Jim Calloway: Well, what about the, the government programs, the small business loans, like the Paycheck Protection Program. I think you’ve had some experience with that. You already said you filed an application?
Sharon D. Nelson: Yes, yes I did and like so many other of my friends who are lawyers, I filed on day one and they did too, it was a very, very painful process and I think everybody who’s been through it would agree with me. The rules kept changing, the banks were getting advised but in a spotty fashion and things kept changing and some of the banks were better than other banks.
I know that an awful lot of people that I have talked to who did not get a PPP approval blame their banks. I mean very seriously blame their banks. And it looks to me like from what I’ve been reading the smaller community banks actually tended to do somewhat better than some of the larger banks. Certainly our bank did a fine job and we got our approval and we learned today that within 48 hours our monies will be in the bank account, which that, that day is going to be open the bottle of Dom Pérignon.
Jim Calloway: I can imagine.
Sharon D. Nelson: Oh my goodness gracious, but a lot of people didn’t get them and the small firm lawyers they didn’t get them. They are really, really upset and their revenues are definitely declining. There are certain kinds of practices of course where it is not hit a lot, but if you’re a courthouse lawyer like you mentioned Jim, you practice criminal law, there is just all the stuff that’s not going on, that was going on and so some areas of practice have been really, really, really hard hit. And apparently if you applied and this I would want to verify, but I understand from some of my lawyer friends that if you applied for the first program you can’t apply for the second program, the one that they’re fighting over now.
But that’s — it’s been a difficult, difficult process and one of the things I have learned is about those small community banks and I’ve also learned that my theory long, long ago is make your banker your friend, was a really, really smart move, because they love us at our bank and we got personal emails, we got personal phone calls, I mean they really wanted to help us in particular because we were their friends.
So being a friend with your banker is definitely an objective you should have.
Jim Calloway: Sharon, we saw that in Oklahoma a lot too. The smaller banks seem to be much more nimble and not even — it just seemed to be a much easier situation. In fact, I think one of the ironies is we’re kind of wondering if our rural lawyers are actually going to do better than our urban lawyers, at least the small firm urban lawyers, because in the big city you tend not to know your banker unless you make an effort to do it, whereas in a smaller community, at the part of the community you sit in high school football games and all of those sorts of things.
So I, I really do think that you stay in close with the banker and part of this was because the feds refused to relax to know your customer rule. So it was really handy as in your situation Sharon, where they actually did know their customer and so they didn’t have to worry about compliance with that.
Sharon D. Nelson: Yeah, I think — I think that made a really big difference.
Another thing that we’re seeing around here in response to this nightmare we’re all living through, is we’re seeing lawyers trying to negotiate rent abatements with their landlords and of course landlords hate rent abatements, but we understand that some have granted them. There’s all different ways to negotiate with your landlord.
In one case we know a larger firm got a six months abatement, what we don’t know is whether they had to extend the lease by six months or more, that’s one of the negotiating tools. You can also negotiate a lower rent for a period but you may have a slightly higher percentage rate over time.
I mean all of these things can be negotiated. You effectively can get either an addendum to a lease or really a whole new lease in and of itself. I’ve seen that go both ways.
The other things we’ve seen people very much worried about is whether they have Business Interruption Coverage, which is an all over the map scenario. I think a lot of solo and small firms do not have Business Interruption Coverage, most larger firms do. We’re very fortunate we do have Business Interruption Coverage and we actually had to use it once when there was a fire in the basement of our building and we were kicked out of the building for a week while they did whatever they needed to do that would make the fire protection systems and the water come on and everything else. So we had to wait for all of that.
It’s complicated, even if you have Business Interruption Coverage you have to see first what’s covered. Is Act of God incidents not covered, would the virus be covered under the language, are government Stay-At-Home Orders enough to make it a business interruption scenario. Law firms in many states have been allowed to remain open even though the management of the law firms has wisely chosen to have the lawyers work remotely and then you still have to prove your damages and I remember that just for the one week we were out, we had to do a whole lot of math and I hate math Jim.
But we had to take average weekly revenues over the past year before the interruption and compare them to what monies came in and what monies didn’t come in, etc.
So I think we finally ended up with something like $14,000 for the week we were out, but it took a lot of form filling out and collecting data to get there. So read if you do have that coverage, read it carefully and also read the notice provision so that you’re not too late in giving notice to the company of having had an incident.
Jim Calloway: Lawyers are often given a hard time for the way we read contracts over and over again, but I’m sure a lot of people look into their business interruption policy were really disappointed to see references to viral infections or some other things. That make –
Sharon D. Nelson: As an exclusion, yeah.
Jim Calloway: Yes, as exclusion, right. So well, I talked to a lot of lawyers who are really worried about their law practice and really their sales surviving, small firm lawyers tended to not keep a lot of reserves. So what could you do to survive and I think the first answer is we have to look at payments a little differently. I don’t want cash anymore Sharon, it’s dirty, even checks. I like electronic payments because they come right in the account and I can access them from everywhere and I can spend them.
One thing that prevented the bank runs associated with some other disasters is that the money in the bank that you could use to purchase on Amazon or whatever was actually more valuable than cash during the pandemic.
So I would say if you’re not doing credit card processing that’s something you should do. You should certainly start sending out your bills electronically with a link for payment in them, that’s a really big thing, both credit card and ACH and if your web presence is substandard in a more stay at home world and again maybe half the people don’t follow that, but there’s still half of the people that may, in a more stay at home world you’ve got to have an attractive web presence, you’ve got to have tools.
So having tools like Calendly to set appointments or FindTime or all these different things, people expect that and they’re going to look for a more not just a touchless approach perhaps but a frictionless approach.
And so I think a lot of things you can do for this new world. I wish that we had more information like everybody else in the world wish we had more information, but we’re just going to have to ride this one out and I recently helped work on an article about business continuity plans, those look a little different, particularly because some experts say, this may reoccur and others say, this may not be the only pandemic of our lifetime in a very crowded planet. So what do you think about those areas?
Sharon D. Nelson: Ah, I think we have a lot more to talk about which we will do after our break, but I did want to add one more thing to what you said Jim and this is, we have just implemented just before the payment becomes due, we send out a reminder just several days before reminding folks that payment is due on X date, it’s a really gracious note. We thank them for being clients etc, etc, but we just want to point out that they will have to pay interest if they do not pay by X date and we don’t receive the payment.
And so then we touch them again after the payment date if again, we give them a few days but if they haven’t paid then we remind them again a very gracious note, but it does remind them that they have an amount that’s past due and that — the more often you touch a client like that in a nice way, the more likely you are to get paid, and we have seen after we instituted this that, that actually worked Jim.
Jim Calloway: Well, digital cash flow or regular cash flow is still important. Before we move on to our next segment, let’s take a quick commercial break.
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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is “Risky Business: How Lawyers are Navigating Through COVID-19 and the Rocky Economy”.
So Jim, as you were saying before the break, these business continuity plans and pandemic plans, I mean I don’t know of a solo and small firm that had a pandemic plan. I mean they hadn’t heard of them. They now want me to draft one, but they had not even heard of them.
So a lot of them were without plans and they really went into headless chicken mode, they have a crisis but they have no plan, so it’s like fluttering their wings around but not actually going anywhere, running in circles and no plan, even if you have one, ever survives first contact with the enemy. So you have to keep changing the plan.
It’s certainly understandable but firms did not have pandemic plans, only to my knowledge it was really basically the really big firms that had pandemic plans. But now people are developing them. There are templates online that you can certainly follow at least they can be a beginning, and you know what we’re being asked to do now, which I think it’s really interesting, is they actually want a plan for a staged reopening of law firms.
So now they want to know things like how do we change our offices to help with social distancing, how do we handle the fact that we just can’t have a nighttime cleaning crew, we have to have people in house who are doing disinfecting, should we have more video conferences rather than having 20 lawyers in a conference room, how do we put that into the plan, how do we handle just the constant disinfection of kitchens and doorknobs and bathrooms etc, etc.
Also of course, now we’re under different rules, the Equal Employment Opportunity Commission has issued new rules which was a — a new guidance was issued in March and under the Americans with Disabilities Act which kept employers from asking a whole of questions or being able to require somebody to leave if they were ill. Now you can take people’s temperatures, now you can ask questions, now you can ask people to report to you if they’re not feeling well.
So there’s — there’s a whole lot of changes in all of that, but they don’t know how to incorporate all these changes into a plan which is, is fair without of course treading on the basic principles of treating everyone the same whether they are disabled or not disabled.
Jim Calloway: Well, I’d like to talk about this new reality a little bit more. What changes could be permanent or long-lasting. Until we have a vaccine or cure, I fear we have a lot of social distancing ahead. We’ve been a part of this incredible collective worldwide effort, more of a necessity but many clients particularly those who are older and retired are going to seek contact with services for quite some time now and that includes legal services.
So it may be that you need to figure out a method for people, if people have been isolated in their house for 40 days, I don’t want their will execution to compromise their health. We have had lawyers who’ve gone to people’s — had the clients come to their offices and they’ve gone outside and slipped the documents through the window, a little crack while the people watch the witnesses from the other side of the car, that was kind of interesting, the parking lot will executions.
And whether you call it virtual or contact list, you’re going to see a lot of yellow pages ads, you’re going to see a lot of websites that are going to be accommodating these people, because a lot of people — when people were compromised they would not — they would wear masks and go out in public. I think we’re going to see a lot more people in chemotherapy and those immunocompromised situation that they’re going to, just stay home. We’ve done that for a while.
As I noted electronic payments are now suddenly more valuable than checks. A recession of some sort really seems assured and my friend Jordan Furlong, the noted legal futurist has been doing a series of pandemic post and just recently posted his eighth one, that talks about a greater role for lawyers in helping people with government benefits or maybe even contracting with the government as the government’s obviously won’t be a really big player in the next couple of years.
So the new reality, what we know for sure is that we don’t know, but we’ve got a plan.
Sharon D. Nelson: Well Jim, I’ll tell you, my Japanese husband John tells me that there’s an old Japanese proverb which says, fall seven times stand-up eight. So may we all emerge standing.
And does it for this edition of The Digital Edge: Lawyers and Technology; and remember, you can subscribe to all the editions of this podcast at legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us in Apple Podcasts.
Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.
Sharon D. Nelson: Happy Trails, Cowboy.
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