Phase One Guidelines for Reopening Your Law Firm

Last week we talked about considerations for reopening your law firm.

While some of Oregon’s most populous counties remain closed, most were cleared for a phase one reopening three days ago. As a result, we now have new resources for all businesses, including your firm.

The guidelines come from state and county health departments and include 15 documents you should download, read, physically post, and deploy in your office:

Your firm should develop written protocols regarding:

  • Recommendations or requirements for face masks for employees and clients/consumers 
  • Conducting daily health assessments for employees (self-evaluation) to determine if “fit for duty”
  • Maintaining good hygiene at all times, hand washing and physical distancing
  • Cleaning and sanitizing workplaces throughout the workday and at the close of business or between shifts
  • Limiting maximum capacity to meet physical distancing guidelines.

Client businesses can check for sector-specific guidance on the state webpage here.

Thank you, thank you, thank you to Deschutes County for publishing this helpful information.

Questions? Call your county health department.

For those of you continuing to work from home, watch for a post about tech and security next week.

All Rights Reserved 2020 Beverly Michaelis

Preparing to Reopen Your Law Firm

On May 7, 2020, Governor Brown announced new details on the phased reopening of businesses in Oregon. Decisions will be made on a county-by-county basis. Counties must apply to reopen and:

  • Show a decline in COVID-19 or have fewer than 5 hospitalizations
  • Have sufficient COVID-19 testing and contact tracing capability
  • Establish plans for the isolation and quarantine of new cases
  • Have the hospital capacity to handle any surge in COVID-19 cases
  • Have enough personal protective equipment for health care workers

What Should Law Firms Do?

Now is an excellent time to put your plan together for phased reopening.

Start with this very thoughtful post from Vinson & Elkins. Directed at clients, it also applies to law firms, who are – after all – businesses too.

It begins with identifying a return-to-work coordination team with the right members – HR, IT, finance, admin, and for law firms – lawyers and legal staff. As a group, the team addresses these issues:

  1. When will the office reopen?
  2. Who should work from the office?
  3. Should we screen employees for COVID-19 before they return?
  4. What new practices will be required to maintain social distancing and ensure a sanitary workplace?
  5. How will we handle individual employee requests?

The post suggests delegating responsibilities by department or floor. This could also be done based on the issue. Whatever makes sense for your firm. Most importantly, the team needs to communicate what will happen and when.

Remember the Clients

While social distancing and sanitizing will benefit clients, your return-to-work team should also consider:

  1. When will we resume in-person client meetings?
  2. What new practices will be required for in-person meetings?
  3. How should we communicate about COVID-related client procedures?

Permitting in-person meetings may mean:

  • Redesigning your reception area
  • Staggering client meeting times
  • Limiting non-client visitors
  • Requiring face coverings
  • Sanitizing client property delivered to the firm

More Resources

A Google search reveals a plethora of return-to-work resources from law firms directed at clients, such as the return-to-work coordination team described above. Three particularly useful reads are the Reopening Issues Checklist, the Checklist for Health and Safety Planning, and 10 issues to consider offered by the Society for Human Resource Management.

All Rights Reserved 2020 Beverly Michaelis

 

 

COVID19 Impacts Oregon Legal Community

Author’s Note: Court, Oregon State Bar, and PLF operations have changed since this post was published.

See: Court Operations Restricted, Statewide Postponements, OSB and PLF Closures.

COVID19 and the Oregon Legal Community

In a recent NW Sidebar post, the Washington State Bar Association explores whether the legal profession is ready for a pandemic. The upshot? Take COVID19 seriously and prepare now:

  • Create a list of important emergency numbers that can be quickly accessed in printed and electronic form.
  • Establish remote access to critical client records.
  • Prioritize your firm’s functions by criticality.
  • Have a “go kit” of technology, files, and other necessities if you need to work from home.
  • Review the answers to frequently asked questions published on the Oregon State Bar website.

For a complete list of suggested steps, see the ABA booklet Surviving a Disaster and resources from the Professional Liability Fund [Select “Disaster Response and Recovery” under Practice Management > Forms.]

For COVID19 specifically:

  • Ensure the workplace is clean and hygienic with surfaces regularly wiped down with disinfectant.
  • Promote hand-washing at the office with posters and other communication. And make sure visiting clients have places wash their hands with soap and water.
  • Brief staff and clients if COVID-19 starts spreading locally.
  • Direct anyone in the office with even a mild cough or low-grade fever (99 degrees F or more) to stay home, and make clear to employees that they will be able to count this time off as sick leave.

Law Firms Taking Action

On March 6, Reuters Legal reported that the Seattle office of K&L Gates has asked employees to work from home. Will Oregon firms follow suit, as the need arises? We should.

Status of Oregon State Bar and Professional Liability Fund Services

Meanwhile, the Oregon State Bar issued the following statement appearing on its home page:

As of March 12, Gov. Kate Brown has banned gatherings of more than 250 people within Oregon through April 8. Social distancing can reduce transmission of the virus, helping to delay and slow the spread of the COVID-19. The OSB will continue to monitor and follow recommendations from authorities and has already taken steps to reduce our own community impact. Our goal is to support and protect the well-being of our members and the public we all serve.

All live events, in-person CLEs, and in-person counseling services available through the Oregon State Bar, Professional Liability Fund, and Oregon Attorney Assistance Program are cancelled. Oregon lawyers can access practice management assistance and attorney assistance programs via phone, email, and video conferencing.

Court Operations

Check your local circuit court to learn how court operations are being affected in your area. Multnomah County Circuit Court has postponed trials, hearings, and arraignments. Check court websites frequently for further announcements. Be sure to scroll down to the heading “Latest News.” Read the guidelines issued by Chief Justice Walters here.

Workers Comp Board

All in-person hearings and mediations at all WCB locations have been cancelled. The WCB expects to resume hearings and mediations on Monday, March 30, 2020. Lawyers who have an urgent need on a particular case are directed to contact the assigned ALJ or mediator.

In addition, several health insurance companies have agreed to waive co-pays, co-insurance, and deductibles for COVID-19 testing. Visit the WCB COVID-19 page to learn more about the agreement and review frequently asked insurance and financial questions.

Act Now

You’ll be glad you did.

All Rights Reserved Beverly Michaelis 2020

How to Terminate an Employee the Right Way

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Let’s face it, no organization is immune from having to make the tough decision to terminate an employee. Of course no one likes to do it, but that still leaves the real question of how and when you should do it? This is especially true for lawyers beginning a new practice or expanding their existing practice…

via Breaking Up Is Hard to Do: How to Terminate an Employee the Right Way.

Assuming the employee has not committed an act that warrants immediate termination, consider these suggestions from the post referenced above:

  • Document, Document, Document: Scrupulously document disciplinary issues (if it’s not documented, it’s as if it didn’t happen).
  • Start with Warnings: When addressing performance issues, consider using a progressive disciplinary approach: For example, an escalating series of verbal, written, and other more serious notifications to the employee so they can attempt to improve their performance. However, this would not apply to serious performance breaches, nor for new employees who clearly don’t have the skills for the job.
  • Be Consistent: Take the same disciplinary approach for all employees—being mindful of each individual’s unique background and characteristics such as race; color; religion; pregnancy; gender identity; sexual orientation; national origin; age, 40 or older; disability, visible or invisible; or genetic information.
  • Document Some More: Always document the termination with a concise termination memo. If you do not provide the reason(s) for termination, the employee might assume the actual reason for their discharge was due to whatever protected category applies to them, such as race, gender, or age.
  • Don’t Waver: In the termination meeting, be professional but firm in your decision. The termination memo should do much of the talking for you.
  • Stick to the Script: Do NOT say anything different to the employee than what’s included in the termination memo—this is not the time to be overly reassuring and retreat from the true reasons for discharging the employee.
  • Go in as a Team: Try to have a manager who knows the employee present for the termination. A team approach—two management representatives, or a management representative and a human resources representative, or a management representative and a career counselor, etc.—is preferable because one person can take notes and there will be more than one witness to confirm what is said.

The Professional Liability Fund offers a Checklist for Departing Staff and sample office manuals, which may be helpful. From the home page, select Practice Management > Forms and peruse the “Staff” and “Office Manuals” categories.

All Rights Reserved 2019 Beverly Michaelis

 

Lawyer Transitions: Departing Your Firm

The days of spending an entire career at one firm are long gone.  By the end of three years, nearly half of all associates leave.  Partners bail out for many reasons – compensation, lifestyle choice, and conflicts with other partners – to name a few.

No matter who you are, tread lightly when you leave.  Departing lawyers have ethical, contractual, and legal responsibilities.

If you are a partner

Conduct your partnership withdrawal in a manner that honors the contractual and fiduciary responsibilities owed to your fellow partners.  Contractual duties are controlled by your written partnership agreement.  Fiduciary duties are described in case law and codified by statute in Oregon’s Revised Partnership Act.

If you are not a partner

Review your employment contract, employment letter, office policies, office procedures, or any other applicable terms that may control the process for terminating your relationship with your current firm or your obligations upon departure.

Are issues likely to arise?

Consult outside counsel experienced in the areas of lawyer mobility, partnerships, fiduciary duties, lawyer separation, and law firm dissolution.

Give notice before you contact clients

Inform the firm of your decision to leave before contacting any clients.  Failing to give adequate and timely notice to your firm or partners before you contact clients is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.  It may also constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Oregon RPC 8.4(a)(3).

Although there is no explicit rule requiring lawyers to be candid and fair with their partners or employers, such an obligation is implicit in the prohibition…against dishonesty, fraud, deceit, or misrepresentation. Moreover, such conduct is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.” In re Complaint as to the Conduct of Murdock, 328 OR 18, 25 (1998), citing, In re Smith, 315 Or 260, 266 (1992). See also OSB Formal Op No 2005-70; ABA Formal Op No 99-414.

Assessing your client caseload

Undoubtedly there are clients you would like to take with you, but there may also be clients you prefer to leave behind.  Draft a client notification letter informing clients of your departure.  Schedule a meeting with your supervising partner or other appropriate member(s) of the firm.  Bring a printout of your current cases and your draft client letter.  This meeting must occur before you contact any clients.  [Note: more than one notification letter will be necessary if you intend to keep some clients and leave others behind.]

For clients transitioning to your new firm

Make arrangements to obtain trust funds, copy paper and digital records, and sign new fee agreements.  Checklists documenting the steps to take when leaving a firm are available from the OSB Professional Liability Fund.

For clients you are leaving behind

Properly document client files by preparing memos describing the status of each case and any upcoming deadlines.  If you are attorney of record, withdraw or confirm that a substitution of counsel has been filed where necessary.  Otherwise, you remain on the hook.  Check out the resources available from the OSB Professional Liability Fund describing a lawyer’s duties upon withdrawal and termination of representation.  If in doubt, contact the OSB General Counsel’s office or consult with outside counsel.

Transition don’ts

  • Misleading clients about their right to choose counsel
  • Contacting clients before speaking to your firm about your departure
  • Taking client files without the knowledge or consent of the firm
  • Taking client money without the knowledge or consent of the firm
  • Taking firm property, including forms, research, or other materials, without the consent of the firm

Transition Dos

  • Put clients first.  Whether you are making a lateral move to another firm or setting up your own practice, remember that the client’s freedom of choice in selection of counsel is paramount.
  • Keep the transition as amicable, professional, and stress-free as possible. Contentious withdrawals alienate clients and damage relationships.
  • Remember to take a list of clients with you so you can screen for conflicts at your new firm.

Handled properly, your departure should be smooth and uneventful.

 

All Rights Reserved 2017 Beverly Michaelis