WHAT’S NEW Professional Responsibility and Coronavirus, 20 VTBJ, Spring 2020-#24

Authorby Mike Kennedy, Bar Counsel
PositionVol. 46 1 Pg. 24


No. Vol. 46 No. 1 Pg. 24

Vermont Bar Journal

Spring 2020

Professional Responsibility and Coronavirus

by Mike Kennedy, Bar Counsel

As I mentioned this morning, the Rules of Professional Conduct are rules of reason. Here are some thoughts on practicing reasonably during a public health crisis.

Competence & Communication

• Current Events

To me, competence includes understanding the effect that current events have on the representation.

For instance, on March 16, the Supreme Court adopted Administrative Order 9. It’s an emergency order that addresses judicial operations and it has been amended [four] times.[1]

Yesterday the Governor issued the “Stay Home/Stay Safe” order.[2] It’s the sixth addendum to an Executive Order that issued on March 13.… Competence includes understanding how the Judicial and Executive orders apply to you and your clients. It also includes staying abreast of new orders as they’re issued. Your duty to communicate with clients likely includes explaining to them how the orders will impact their matters.

• Emergency Advice & Assistance

Competent representation includes having the knowledge and skill required for the representation. However, here’s Comment [3] to the rule on competence: “In an emergency a lawyer may give emergency advice and assistance in a matter in which the lawyer does not have the skill ordinarily required [and] where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”

Diligence & Communication

Rule 1.3 requires lawyers to act “with reasonable diligence and promptness” on behalf of clients. Rule 1.4 requires lawyers to keep clients reasonably updated as to the status of their matters, to provide clients with enough information to make reasonably informed decisions about their matters, and to respond to clients’ reasonable requests for information.

In my opinion, when it comes to assessing reasonableness, context matters. Conduct that might have violated the rules last summer, might not now. While lawyers cannot abandon or ignore clients, I’d argue that they can keep the bigger picture in mind when prioritizing their days.

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