Attorneys have much to be thankful for

The holiday season is a busy time. For many attorneys, the fiscal fourth quarter -- with the mounting pressure of work needing to be done before the holidays and the struggle to find time to spend with friends and family -- can be demanding.

It can be hard to recognize all the opportunities to be thankful during this season as it pertains to the practice of law. Notwithstanding external pressures, there are still many reasons to be thankful to be a practicing attorney:

Judicious handling of legal malpractice lawsuits

No attorneys wish to be involved in their own legal malpractice suit. However, courts are showing a growing trend in appreciating the complexity and detail associated with such claims. Attorneys should be thankful for and take comfort in knowing that courts largely appear to understand the difficult analysis of the "case within a case." 

California, like other jurisdictions, recognizes that proving malpractice is a high bar requiring evidence that lawyers fell below the requisite standard of care and that such a departure caused the former client's damages. For example, it is a high bar in California for a litigant to be able to prove a malpractice claim against an attorney without the use of expert testimony. Although a layperson may incorrectly assume that the mere existence of a potential breach of a legal duty indicates legal malpractice, courts have issued many decisions over the last several years that confirm the understanding that breach, alone, does not mean liability. An attorney error or an unfavorable case result, on its own, is insufficient to prove malpractice.

Courts in many jurisdictions have continued to focus on the plaintiff's burden to prove causation. Attorneys may be thankful that, if they are ever on the receiving end of a claim, they are more likely to be in front of a court that will give due consideration to the matter.

Greater access to justice

Advancements in technology, increased pro bono support, and better funding are just some of the factors that have led to a growth in access to justice in California and other jurisdictions across the country. The COVID-19 pandemic encouraged many courts to reconsider what could take place through remote means. The shift to keep conducting proceedings virtually has encouraged not only more judicial efficiency and a reduced burden on court resources, but has made the judicial system more accessible to parties. For instance, a pro se litigant who could not take a day off of work to attend an in-person hearing, which could have dire consequences in any case, might now be able to attend a remote hearing on a cell phone during lunch break.   

The availability of pro bono opportunities has also grown. The legal field is one of the few professions that promotes and recognizes pro bono services. Pro bono work can be very mutually beneficial to more junior associates looking to develop their courtroom and practical experience early on, and can also help law firms gain further name recognition in the community through this service. Technology has improved access not only for those persons in need, but also for attorneys' access and awareness of pro bono opportunities.

State bars are also committed to increasing legal aid services. For instance, state bars assist with IOLTA-based efforts like encouraging financial institutions to help fund legal aid organizations. Additionally, the implementation of remote hearings, remote client meetings, or even the ability to volunteer remotely at the local legal aid program for a few hours is more easily managed with busy schedules, which, in turn, encourages more attorneys to volunteer their time.

The California Rules of Professional Conduct ("Cal. RPC") encourage attorneys aspire to render 50 annual pro bono hours to meet "the responsibility of the profession" to "ensure equal access to the system of justice" for those who cannot afford it. Cal. RPC 1.0, cmt. 5. While logging pro bono hours in California is not required, California does require attorneys to report their pro bono hours each year. California's law is aligned with the national trend seeing many states implement pro bono reporting requirements as a means of encouraging the practice.

Notwithstanding the ethical (and arguably moral) obligations to give back to the community, law firms will often still take steps to ensure that their internal protocols - such as conflict procedures - are followed when attorneys accept pro bono assignments. It can be helpful to use engagement letters to clarify the nature of the services to be provided and for attorneys to confirm that they are insured for pro bono work.

Technological advancements

The use of technology allows a legal team to stay connected easily and quickly, regardless of one's location. It also encourages a work-life balance. Smartphones, tablets and laptops are ubiquitous, and their use has been integrated into the daily practice of law.

Attorneys may be thankful for the shift to remote and hybrid work. The ability to travel and work remotely is beneficial to professional careers and client matters. Gone are the days where an attorney has to entirely cancel a vacation because that attorney must be physically in the office to work on a brief or other project. Evolving technology makes calendaring and docketing easier and more practical. Further, research tools and trial preparation tools are ever-expanding. Although this ability for flexibility in schedules is a definite improvement for many lawyers, lawyers also must take steps to ensure that they still enact some barriers to maintain balance.

The shift has been monumental in the court system, as well. The ability for courts to run their dockets remotely has eased some of the court's backlog, decreased costs, increased access to courts, and encouraged more technological advances across the board in the judiciary.  

While these technological advances may inspire gratitude, law firms and attorneys may consider steps to ensure that their smartphones, laptops and tablets are protected to guarantee privacy and confidentiality. Most law firms enable IT policies and procedures, such as complex passwords, the use of two-factor authentication and/or virtual private network (VPN) logins, and mandatory cybersecurity training, to protect privacy when working remotely.

Adaptive insurance policies

Insurance companies are always looking to the horizon to identify what is upcoming in the market. It is no different for professional liability coverage. Lawyers can be thankful this holiday season that professional liability insurance coverage is readily available for attorneys and law firms, and there are more options than ever before. In fact, insurers are keenly adept at identifying and adapting to market trends. Insurance companies can assess what are the largest concerns or risk exposures for attorneys and law firms in today's market and customize policy coverage accordingly.

Law firms and attorneys may consider tailoring the scope of their insurance to their particular practice's scope or the potential benefits of risk management training and other programs. Attorneys can rest assured that insurance companies are thoughtfully considering the complexities of the legal field, adding to the strength of the partnership shared by many firms and their insurers.

Keeping these things in mind can help attorneys to be thankful for their line of work this season.