5 Legal Malpractice Danger Zones for FL Lawyers During COVID-19 | Florida Lawyers Mutual Insurance Company

Statutes of Limitations, New Practice Areas, Giving COVID-19 Advice, and Other Red-Alert Issues

By Aaron H. Wallace, Esq.

If you’re like most lawyers in Florida in 2020, you’re reading this from a makeshift home office, with your laptop now running where a bowl of spaghetti sat last night as the distant sounds of Frozen II permeate your workspace from the living room next door.

Your kids singing along to the blockbuster soundtrack carries an eerie irony. “Into the unknoooown!” they shout. “Touché,” you sigh.

No one told you practicing law would ever be quite like this.

Unfamiliar territory is inherently difficult to navigate, and without adequate forethought and extra care, it can become a breeding ground for costly errors.

Lawyers in Florida are right to be concerned about the prospect of new malpractice claims resulting from pandemic-era changes to their manners and methods of practice.

Already, this “new normal” has seen some law firms venturing into novel practice areas, losing sight of fast-changing court procedures, falling victim to cybercrime, and embracing technologies they may not fully understand.

Keeping due diligence, deadlines, cybersecurity, and the standard of care top-of-mind at all times is the key to practicing law during COVID-19.

Below, we’ve assembled a few urgent reminders to help you steer clear of pandemic danger zones as you traverse this new frontier.

Danger Zone 1: Emergency Extensions to Deadlines & Statutes of Limitations

Federal, state, and local courts have been valiant in their efforts to keep the legal system running in spite of unprecedented challenges. The result: frequent communications coming out of the courthouses, including emergency orders and temporary extensions for filing deadlines and statutes of limitations.

That’s not all. Some regulatory deadlines have been modified, while certain in-person requirements have been suspended. Court orders now determine whether proceedings are in fact proceeding… and if so, where and how.

It’s a lot to keep up with. The Florida Bar’s webpage for COVID-19 Court Orders & News now consists of nearly two dozen bullet points, and the list gets longer each week.

While these measures can provide relief in exigent circumstances, and while we applaud the courts for rising to the occasion, we are concerned that this fast-changing landscape may cause some lawyers to overlook a court order, misunderstand its application, or otherwise miss a deadline during this period of intense transition.

Missed deadlines are a major cause of malpractice claims and disciplinary proceedings. Florida lawyers are advised to triple-check deadlines during the pandemic. Here are a few best-practice pointers:

Never assume that a Florida court’s blanket extension of time (or what appears to be a blanket extension) applies to your client’s specific legal matter. Check, double check, and then check again.
If you are transitioning from a work calendar to a home calendar, consult both calendars frequently — even if that calendar is hosted on the cloud. We are aware of instances where an item added to a work calendar did not automatically appear on a home calendar, even though the calendars were linked. You do not want a glitch in calendaring software to be the reason you miss a deadline.
Be mindful of jurisdiction. Pandemic-specific rules, procedures, and extensions may vary locally (and certainly from state to state).
Go back through your case files on a regular basis while practicing law during COVID-19. Spot potential filing issues before they become problems.
Just as homeowners are being encouraged to pay their mortgages on time in spite of new forbearance options, we encourage you to meet original deadlines whenever possible, only relying on emergency extensions when truly necessary and after confirming that the extension applies.

Danger Zone 2: Providing Legal Advice in Florida About COVID-19

One of the most challenging things about practicing law during COVID-19 is that clients are looking for answers that lawyers don’t necessarily have.

Whether you represent employers, workers, homebuyers, injured plaintiffs, estate planners, the criminally accused, a 501(c), or whatever the case may be, everyone has questions about what coronavirus means for their future. It’s imperative that lawyers remember (and admit) that they don’t necessarily know.

The reality of our governments’ pandemic response measures is that they were enacted hastily (even if necessarily so) and have not yet been subjected to extensive judicial review.

That review will come. So will lawsuits — from employers, employees, contractors, and clients — that may someday shape the landscape of “pandemic law” in America. But for now, there’s relatively little precedent to guide attorneys in advising their clients. And as new rules and rulings come forward, it will be all too easy for them to escape your notice absent extraordinary vigilance.

Future rulings will clarify your clients’ current duties. It’s important that your clients understand this.

In writing to New York law firms in Law360, attorney Nicole Hyland cautions:

“…in the heat of the moment, well-intentioned lawyers may be giving faulty legal advice. Unfortunately, law firms will not feel the effects of those errors for months or years, after clients start filing legal malpractice claims.

And make no mistake. Clients will file legal malpractice claims arising from erroneous advice they are getting today. One thing we have learned from prior economic downturns is that they correlate to a rise in legal malpractice claims.”

Florida lawyers would do well to heed the same warning. Now is the time to take extra precautions to mitigate the risk of practicing law during COVID-19. Here are some tips for doing that, inspired in part by Hyland’s words of warning:

Stay in your lane. Defer to others for matters outside your area of practice. (More on this below.)
Be forthcoming about what you don’t know.
To the greatest extent practicable, refrain from providing legal advice about the future implications of COVID-19 rules, procedures, or legislation. When providing advice, inform clients that courts may eventually weigh in, and those rulings are impossible to predict in advance.
Take time during this pandemic to review in detail the rules and ethics governing all members of The Florida Bar.
Stay informed. Monitor court orders, rulings, and news.

Danger Zone 3: Venturing Outside Your Practice Area

The Google results are full of hundreds of business development articles advising lawyers who’ve lost business during the pandemic to consider expanding their area of practice. But a Florida lawyer’s duty of competence does not bend to business needs.

The instinct to expand one’s line of business in challenging times is certainly understandable. But remember: expanding too quickly into new markets or services is bad practice in any industry. And as attorneys, we have heightened duties of care to the clients who trust us.

When contemplating an expansion of your practice area, ask yourself what due diligence requires. Heed this ancient pearl of wisdom: never make a permanent decision based on a temporary situation.

Stated differently, don’t let temporary economic hardship lead to a malpractice claim that disrupts your business and sullies your reputation in the long term.

Danger Zone 4: Using Your Home Network without Adequate Security Measures in Place

The transition to remote work is rife with security vulnerabilities, both those that existed prior to the pandemic as well as new cybersecurity threats that have arisen in the wake of “the great migration” to working from home.

Across the board, cybersecurity experts believe that most law firms have a poor understanding of cybersecurity and underestimate their exposure (which means they also underestimate their clients’ exposure).

It is possible to work both remotely and securely, but it requires taking precaution and staying abreast of emerging threats.

Here are a few basic action items for any law firm currently using a home network to practice law:

Always use two-factor identification for password-protected accounts, as well as an encrypted VPN when using your home internet network.
Update the operating system on all your devices. Install recommended upgrades and security patches as they’re released.
Configure your email server to guard against phishing attacks.
Presume that all digital communications are fraudulent until you have confirmed otherwise.
Never click on links or file attachments in emails.
Do not use email for transmitting wire transfer instructions.
Train your clients on cybersecurity. Caution them that bad actors may contact them posing as your law firm.
Update your law firm’s business continuity plan. This is important because many of these plans presume that lawyers are working out of a physical office, which may no longer be the case.
Do not assume that you have cybersecurity expertise in-house. Hire a cybersecurity consultant to audit your systems and bolster your security.

Danger Zone 5: Inadequate Legal Malpractice Insurance

Given the perils of practicing law during COVID-19, it is critical that you and your law firm maintain high-quality legal malpractice insurance at all times. Because most lawyers’ professional liability (LPL) insurance policies — including our policies here at FLMIC — are claims made and reported policies, it isn’t too late to get coverage for the challenging times ahead.

Likewise, it’s equally important that attorneys who are already covered by an LPL policy during the pandemic continue to exercise heightened diligence during this “new normal” and the various disruptions, challenges, and emerging threats that are likely to persist throughout.

FLMIC is the only direct-write legal malpractice insurer in Florida and the only LPL provider created by The Florida Bar. Additionally, we are proud to be recommended by the Florida Association for Women Lawyers (FAWL), Virgil Hawkins FCNBA, The Jacksonville Bar, the Broward County Bar Association Lawyer Referral Service, and the Hillsborough County Bar Association Lawyer Referral Service. Our company was created for Florida lawyers, by Florida lawyers. We’re proud to protect attorneys all across the Sunshine State.

To get a quote for legal malpractice insurance from FLMIC, send in an easy online application today.