While modern technology might allow you to run your practice from various locations including the golf course clubhouse or your Florida condo there are instances where you may choose not to do so.
Each time you choose to work on a file outside the office, ask yourself what is the benefit to doing this, what are the risks associated with it and how can you minimize those risks.
The benefits to be able to do work outside the office seem obvious- an efficient use of your time and other resources, as well as improved client service.
The risks include:
- Breaches of Confidentiality/Security
- Not Effectively Managing the Retainer or Non-Retainer
- Not Documenting Advice Given, Instructions Received or Time Spent
- Possible Lack of Insurance Coverage
- Burnout/ Lack of Balance
Breaches of Confidentiality/Security
The technology that you are using probably includes laptops, e-mail, wireless connectivity, cell phones, smart phones, PDAs and USB flash drives. Remember to treat the documentation/data you create and store electronically on these various devices with the same care you do your paper files.
The theft, loss or destruction of practice related data is disruptive, stressful and financially draining to you. If that data belongs to, or impacts your client, this breach of confidentiality might result in a negligence claim against you, an investigation or fine under PIPEDA (Personal Information Protection and Electronic Documents Act) and/or a legal ethics and professional responsibility complaint.
Breaches of confidentiality and security can occur in many ways such as:
- Loss or theft of your laptop or PDA
- Wireless connectivity
- Metadata in documentation
- Interception of cell phone conversations
- Loss of USB keys/flash drives
- Viruses, worms, middleware, spyware
- Risk of email interception/wrong recipient
However, suffice it to say that in doing your risk/benefit analysis you should be asking yourself if you really need to be taking your laptop or other electronic devices with you to every golf game, or on every vacation. If you do take these devices, what steps are you taking to secure them and the data they contain?
Wireless connectivity is fraught with danger and can allow unauthorized access to your confidential data. When using wireless connectivity ensure that all possible security features are in place. Remember this whether you are accessing or transmitting information from your Florida condo, your home or your office.
Consider the lawyer who made use of wireless connectivity without first ensuring that all possible security features were in place. They had set up the wireless system himself and thought it was secured by an encrypted password. It was not. This resulted in an unprotected server in the law firm, and permitted an employee in a neighboring building to access hundreds of client files that included personal information such as driver’s licenses, social insurance numbers, work histories and criminal records.
Phone Use and Confidentiality
When making or receiving work related calls ensure that your conversations are totally private. Don’t risk having confidential and privileged information released to golf partners, people in your waiting room, family members or strangers sitting next to you at the airport. It is not only unprofessional; it could give rise to a negligence claim or professional responsibility complaint.
Not Effectively Managing the Retainer or Non-Retainer
If you enter into legal discussions in a social setting you run a real risk that the person you spoke to may consider they have engaged you, even if you have never billed them. Even with ongoing clients there is a danger that something mentioned to you casually in a social setting will result in them thinking they have retained you on another matter when you don’t understand that to be the situation.
Every time you talk with a potential client you should be getting their name, address and phone number, the nature of their case and the parties involved so that you can check for conflicts and send out either an engagement or non-engagement letter. If you’re speaking with a potential client outside the office are you getting this information? If you are, where and how are you storing it? Are you able to find the contact details for your potential clients so that you can send the engagement or non-engagement letter when you eventually get back to the office? Do you have the details of your discussions documented?
You don’t want to find yourself in a situation where you get a phone call from a person (perhaps after a limitation period has expired) who says that they spoke to you last summer at the golf course clubhouse about their case and they are wondering what you’ve done about it when you didn’t even consider yourself retained. To avoid this situation, send out a non-engagement letter when you do not consider yourself retained, and an engagement letter when you are retained for each new matter. Some sample engagement letters and disengagement letters are found here. As always, these precedents need to be adapted to your own particular circumstances.
Not Documenting Advice Given and Instruction Received
Our claims statistics indicate that poor communication with clients and others, a failure to confirm or follow written instructions and disputed instructions are major causes of negligence claims in all areas of law. For this reason it is important that you document in your file all instructions received and advice given. If you are doing business at the golf course clubhouse or at your Florida condo there is a real danger that you might not document the advice given or instructions received; or that if you do, the documents aren’t retained in the file. Without such documentation it is extremely difficult to successfully defend a negligence claim against you.
As well, when you are giving instructions to your office or making decisions without the complete file you may also forget specific instructions from a client or other important information. Errors that given rise to a claim are easily made this way.
Possible Lack of Insurance Coverage
It is important that you are aware of exclusions in your professional liability insurance group policy. In Nova Scotia these are included in Part III of your group policy.
Burnout/Lack of Balance
While it is important for your office to be able to contact you if absolutely necessary, there are many benefits to you being able to take a regular break from the office, whether it’s a weekly golf game or a three week holiday. Going years without a regular holiday is counterproductive, and is a recipe for disaster both personally and professionally. It almost always results in burnout.
Balance is an essential component of a successful law practice. Too many lawyers find themselves working too hard, drinking too much and with personal lives that are falling apart. While it may be difficult to do, make it a part of your strategic plan and calendaring to take time off for family, friends and personal pursuits.
The time you take off and how much work you do while outside the office will vary, depending on your life circumstances and stages. Sometimes it will make sense to work for part of the “down time” at your child’s out of town sports tournament or dance competition, if it means you would otherwise miss the event. It may mean that you return emails and phone messages for one hour each morning of a two week vacation (preferably before your travel companions are up). Sometimes it means a complete break from the office to focus just on your holiday and the people important to you. Regardless of when and how your time off is structured, figure out what works for you, but do give yourself those much needed breaks. You will find it will result in more productivity.