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Kirsti Mathers McHenry sm

Pandemic underlines critical need for law firms to create contingency plans, speakers say

Monday, January 11, 2021 @ 9:08 AM | By John Schofield

When Ontario’s first COVID-19 lockdown was implemented in March 2020, Kirsti Mathers McHenry was on a beach in Bonaire. The next day, the lawyer and consultant with Mathers McHenry & Co., who manages strategy and operations for the Toronto-based employment law firm, was back in the office, asking the organization’s then-complement of six lawyers and staff what they needed to do their jobs from home for the next day, week and month.

“It was just a matter of phasing in the planning as best we could so we were responding to an evolving situation,” she recalled recently during an online session at the sixth annual diversity conference organized Dec. 7 by the Roundtable of Diversity Associations (RODA), a federation of 21 diverse lawyers associations, in partnership with the Ontario Bar Association.

Kirsti Mathers McHenry, Mathers McHenry & Co.

The pandemic has highlighted the importance of contingency planning for almost every organization. But for lawyers and law firms handling critical client matters, being prepared for any eventuality is essential, said panel member Juda Strawczynski, the director of PracticePRO, the claims and risk management branch of LawPRO, which provides professional liability insurance to lawyers across Ontario.

“Regardless of whether it’s mandated or not, it’s something every lawyer should be thinking about and every firm should be thinking about,” said Strawczynski. “Really, if you think about it from a client perspective, you want to make sure that should anything happen to you or to your practice, that somebody will be able to step in and help your clients and continue your legacy of good work.”

No one likes to contemplate worst-case scenarios, he conceded. But the plan doesn’t have to be perfect — and it’s never too late to start.

“Hopefully lawyers are learning now that perfection is the enemy of the good sometimes,” said Strawczynski, “and what we are all striving for is plans that get you through it so that you’re not trying to make up your process from scratch on the go.”

Great resources are available to provide direction, said the panellists, including guides published by the Law Society of Ontario and LawPRO. To make contingency planning more enjoyable, the U.S. Centers for Disease Control even created a slate of tongue-in-cheek “zombie preparedness” products to help people develop crisis contingency plans.

Juda Strawczynski, director of PracticePRO

While one-size-fits-all plans don’t exist, Strawczynski said lawyers and law firms can start by focusing on their people, their processes (including technology) and their insurance needs.

On the people side, he advised, begin by ensuring that emergency contact lists are in place and, being careful to maintain data security, know how clients and documents can be accessed if key personnel are not available.

On the process side, check with IT staff or outside contractors to make sure important information is being backed up and how long it would take to be back online in the event of an emergency. “We have seen cases where a law firm has been knocked out because of a fire in their building, but only their building,” he said, “or the pipe bursts above them and knocks out their server room, which begs the question what sort of backups did you have and could damage have been prevented if you had a cloud-based system?”

When it comes to insurance, it may be wise to obtain added coverage for specific risks such as ransomware attacks or cybersecurity breaches, for which LawPRO provides only limited coverage, said Strawczynski. As a first step, he suggested, considering contacting LawPRO’s customer service group to find out what’s covered and what’s not.

Mathers McHenry recommended developing two types of contingency plans: one that would cover an emergency involving a key practising lawyer, and another plan for a crisis situation like a pandemic, a fire, a flood, a blackout or cybersecurity problem.

For the first type of plan, which is especially important for sole practitioners or small firms, start by thinking who could replace that key lawyer, approach that person and discuss a possible reciprocal arrangement. Think about the details and consider putting something in writing, including a will and power of attorney. If a replacement suddenly had to step in, how would he or she access clients, files, signing authority and banking functions? Consider preparing an office manual and establishing a contingency fund that could cover expenses for at least three months.

“It’s easier to step into someone else’s shoes,” she said, “when they’ve got a clean house and they’ve been running their practice well.”

When developing an external emergency plan, look at it from the perspective of people, clients and firm management, advised Mathers McHenry. Begin by brainstorming the 10 or 15 events that could interrupt your ability to serve clients and manage your firm, and then think about how you would support your staff and clients in those scenarios. Develop an emergency communications plan and look at the key functions of your firm, like issuing paycheques and paying bills, and how those would be maintained in crisis. And, again, plan on creating a contingency fund.

Eugene Cipparone, Goodmans LLP

At large firms, contingency plans are usually developed by multidisciplinary teams, including IT, finance, marketing and HR, said Eugene Cipparone, director, professional support, at Toronto-based Goodmans LLP.

“You need to have that full-circle communication,” he told conference attendees. “We also need to hear from our practice areas that have unique situations themselves that we might not have foreseen.”

For COVID-19, Cipparone said Goodmans had to re-examine its contingency plan when it became clear that the pandemic was going to last longer than originally expected, and the plan is still evolving.

“That’s part of the learning by doing,” he said. “Some things have worked better than others. I think reaching out to certain of the support areas, I think they made adjustments along the way to find that right balance.”

Cipparone said that, among other things, he was heavily involved with the firm’s library, checking with vendors to see if resources could be made available online and creating a repository of rapidly evolving COVID-related legislation. From a technology standpoint, the firm had to accelerate its evolution away from paper-intensive business processes to online ones and accommodate the shift to virtual courts by converting some boardrooms to allow for social distancing, proper monitors, speakers and microphones.

He advised firms to do due diligence with vendors to find out what their contingency plans are.

“I’m finding that due diligence now is working in all directions,” he said. “So having something written down, whether it’s a full-blown manual that’s internal or something shorter that is client-facing, also helps you do due diligence on your vendors to make sure that if you ticked off these boxes, that they have, as well.”

Creating a contingency plan can provide a great opportunity to review a firm’s core processes, said Mathers McHenry. But the panellists also urged attendees to try to align contingency plans with the firm’s corporate culture and to consider the personalities of the people who manage it.

“In any kind of catastrophic situation, there’s going to be moments of deep uncertainty, and you’re going to want selected people who have the trust of your clients, your staff and your service providers and who can communicate in a way that is calming,” she said. “I think it’s critical you’ve got somebody who’s a great listener because in those conversations and those moments of information sharing, you’re effectively triaging.”

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