Josh J.T. Byrne.

COVID-19 is an unprecedented challenge for us all. Our normal routines have been set aside by choice and by fiat. We are working from home with all of the distractions that brings—children, pets, partners (the other kind)—are all part of the new normal. The access to the refrigerator, the TV and the X-Box, are all part of the new normal. At least for now. The crisis will not last forever and when it subsides, we will return to our offices and to our normal work routines. COVID-19, however, will leave its mark.

Many better qualified experts than I are already speculating on a COVID-19 baby boom (as well as a "divorce tsunami"). I anticipate a COVID-19 legal malpractice upswell (nothing as dramatic as a tsunami), and it does not take much of an imagination to see why. The COVID-19 upswell will be driven by two idioms that are newer than you might think and exceptionally relevant to the current moment.

The Devil Is in the Details

The origin of the idiom "the devil is in the details" is cloaked in some significant degree of mystery. German architect Ludwig Mies van der Rohe (1886-1969), the last director of the Bauhaus, is closely associated with the phrase, as well as the phrase "God is in the details," although it almost certainly did not originate with him. A version of the phrase may have been first used by French novelist Gustave Flaubert. Whatever its origins, the phrase should appropriately be considered a touchstone for legal malpractice avoidance. It is the details, and the devils that dwell therein, that consistently entrap legal professionals.

COVID-19 or not, the duty of a lawyer to her client does not alter. The lawyer must exercise "ordinary skill and knowledge." However, the upheaval brought about by COVID-19 has made it much harder to exercise "ordinary" skill and knowledge. Our judicial system is a patchwork in the best of times. These are not the best of times. Some courts are completely closed, others are not; some courts have extended all deadlines, some courts have extended some deadlines, some courts have extended no deadlines.

Missed deadlines are perennially the leading cause of legal malpractice cases. It is more important than ever, and more complex than ever, to track the deadlines your clients' cases are subject to. This is where the devil is in the details. Deadlines are approaching (if you can figure out what they are) and scheduling a deposition has never been more difficult. Witnesses have retreated into hiding and experts are unavailable. Fellow attorneys are working from home with varying degrees of responsiveness.

The difficulty in interpreting the patchwork of court orders is compounded by the fact that your support staff is providing their support from their homes. It is difficult to coordinate activities, what could be accomplished two weeks ago by sticking your head out the door now requires an email. Although difficult, it is more important than ever to keep in touch with your staff and make sure you know who is taking on the responsibility of making certain that all revised deadlines are calendared and attended to. At the end of the day, you—the attorney—are responsible for making certain that what needs to be done gets done.

Follow the Money

The other reason to anticipate a legal malpractice upswell is found in the idiom "follow the money," or James Carville's memorable "the economy, stupid." Unlike "the devil is in the details," the origin of "follow the money" as a popular idiom is clear. The brilliant William Goldman ("The Princess Bride," "Butch Cassidy and the Sundance Kid," "Marathon Man") created the line for "Deep Throat" in the screenplay for "All the President's Men." The line does not appear in Bob Woodward and Carl Bernstein's book or articles.

Legal malpractice frequency trends along economic lines. The "Great Recession" from 2007-2009 saw a marked increase in legal malpractice actions. When people lose jobs, homes or businesses, litigation ensues, including legal malpractice actions. One of the interesting results of the burst of the housing bubble, which was the impetus for the Great Recession, was that legal malpractice claims involving underlying real estate issues overtook legal malpractice claims with underlying personal injury actions in claim frequency.

The stock market has fallen precipitously in the last month with the Dow Jones Industrial Average losing over 10,000 points. Many businesses have seen a sharp decline in revenue or have been put completely out of business. It is inevitable that litigation will arise out of this economic ruin. People will blame their attorneys for financial failure—warranted or not.

During these times the small things we should always be doing to guard against legal malpractice become more important than ever. Some of the most basic things to concentrate on are:

• Check and recheck deadlines and adhere to them;
• Stay in communication with your office staff and attorneys;
• Stay in communication with your clients;
• Document your communication with your clients in writing;
• Manage expectations in writing;
• Do not put anything into an email that you do not want blown up as an exhibit at trial;
• Utilize the resources your professional liability carrier and bar associations have to provide guidance.

There is no foolproof way to guard against legal malpractice actions, but being aware that this is a time of particular risk and following best practices protocols will give you the best protection possible. Remember, the devil is in the details.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is the chair of the Pennsylvania Bar Association's professional liability committee former co-chair of the Philadelphia Bar Association's professional guidance committee.