The Changing Geography of Law Practice: Law Firm Risk Management Considerations.

• Author: Fucile, Mark J.

"[I]n this day of a global pandemic, the legal profession has learned to adapt to virtual practices[.]" ~T Diamond Bar, LLC v. Empire Pipe & Supply Company, Inc., 2020 WL 635523 at *3 (D. Or. Aug. 26, 2020) (unpublished)

"VIRTUAL" and "mobile" lawyering existed well before the COVID-19 pandemic. Similarly, multiple or "branch" offices are nothing new for law firms, either. In the wake of the pandemic, however, the "geography" of law practice has changed significantly. "Hybrid" offices and "remote" work models that initially emerged as expedients during the pandemic are increasingly becoming more permanent going forward. (1) This new geography of law practice has important implications for law firm risk management. Law firms that have approved permanent work-from-home arrangements for both lawyers and staff have, in many respects, acquired more "offices" for which they are responsible in both regulatory and civil liability senses. This evolving geography suggests rethinking corresponding risk management considerations for both the technology that enables physically dispersed work forces and the supervision of lawyers and staff who are not all "just down the hall."

This article will first briefly survey the general regulatory and liability principles that govern law firm responsibility for their lawyers and staff. It will then address the changing dynamics for managing those risks for both technological and human resources with the "new normal" of more physically dispersed work forces. (2)

1. Law Firm Responsibility for Lawyers and Staff

   Both state lawyer regulatory codes and common law generally make law firms responsible for the conduct of firm lawyers and staff--although they approach this concept in distinct ways.

   The ABA Model Rules of Professional Conduct, on which all states' lawyer regulatory codes are now patterned, focus on the conduct of individual lawyer-licensees rather than law firms. (3) ABA Model Rule 5.1(a), however, addresses the responsibility of law firm management to make "reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct." ABA Model Rule 5.3(a) applies this same principle to supervision of law firm staff. (4) Although these rules address the knowing failure to personally institute appropriate systems and policies rather than vicarious liability, the practical result in many instances is the same. Most reported decisions under state rules prior to the pandemic involved discipline of law firm partners for management deficiencies occurring in the same physical office. (5) A few, involved the pre-pandemic version of "remote" supervision: disciplining law firm partners for inadequate supervision of "branch" offices.

   In contrast, law firm common law civil...