The world-wide COVID-19 coronavirus outbreak has forced many law firms -- especially smaller firms, which usually are most vulnerable -- to make business continuation decisions in what has become, in some law firms, a near-panic environment.
This updated version of a Walker Clark World View article from 2014 offers a basic checklist for law firms to review their planned responses.
The most important point is that even if your law firm has never had a plan to respond to the effects of an epidemic on your business operations and the ability of your firm to meet your clients' changing needs, it is not too late to make serious business continuation planning your firm's top priority.
To help our clients prepare for, and respond to, emergencies better, Walker Clark LLC has studied how law firms respond -- or fail to respond -- when a disaster strikes. We have identified four common -- but usually critical -- weaknesses in law firm disaster preparedness. These are not the only potential problem areas; but a weakness in any one of these areas poses a very high risk to the continued success -- indeed, the continued survival -- of a law firm.
How would you and your partners answer these questions?
1. Do you have any disaster plan at all?
Based on our observations and experience advising law firms on their internal operations, we estimate that at least half of all small and midsize law firms -- even ones that are otherwise well managed -- do not have any written disaster plans at all. Moreover, even if your firm has plans for fires, floods, and other disasters, if there are people in the firm that do not know that these plans exists, then you really do not have a plan.
2. Have you identified the most serious risks?
Our firm helps our clients to analyze their operational environments to identify subtle, but potentially devasting, risks that might otherwise be overlooked. Frequently the greatest potential harms do not appear immediately, but as a subsequent issue as the firm tries to recover from the immediate impacts of the disaster.
These can include psychological risks as people in the firm try to cope with the damage, restore business operations as fully and quickly as possible, and adjust to what might be an unexpectedly long recovery period of weeks or months, while also trying to deal with the impacts of the disaster on their families and in their personal lives. In fact, we often advise our clients to identify these psychological risks and plan responses first, before addressing other more obvious business continuity issues.
3. Are you relying on invalid assumptions?
Some firms have disaster plans that rely on invalid or unproven assumptions. This frequently is the most important reason why otherwise well-documented plans can be of little help -- and can actually be counter-productive -- as a law firm tries to recover.
There are four invalid assumptions that appear to be most frequent -- and most dangerous -- in law firms:
- assuming that the key management and operational people will be available
- assuming that communications systems will be available
- assuming that your team will have access to the premises
- assuming that your backup systems will work
4. Do you practice your plan?
The only sure way to test your plan's assumptions is to practice the plan. This is also the best way to discover problems that could arise but have been overlooked.
To be a worthwhile and reliable test of a disaster plan:
- The practice must be as complete as reasonably possible, with no major events or issues "written out" of the exercise.
- Everyone must participate in person.
- The exercises should be as realistic as possible: with little advance warning and under normal working conditions.
- The exercises should be frequent, at least annually.
- People must remember that the goal of the exercise is not to "pass the test," but to identify problems.
5. What could go wrong?
For example, if you close your office and direct your people to work from home, how reliable and -- critically important -- how secure are your communications systems? One of the biggest risks is the disclosure of confidential information, either intentionally, by hacking or manual data theft, or unintentionally through carelessness.
If you decide to curtail international travel, how reliable are the alternatives that are available to your firm, such as teleconference and videoconference systems and how secure are they?
This is probably the most difficult part of business continuation planning: not just knowing what you are going to do to keep the law firm running, but also understanding the sometimes hidden risks that could wreck your plans.
A serious approach to disaster preparedness is expensive. It requires fee earner time and management attention. It will take time that partners and other fee earners could have used to market the firm, develop new business, and perform billable work. However, the cost of not making this investment can be much greater.