COVID-19 Fears May Be Grounds for Withdrawal

• Author: Christopher G. Binns
• Pages: 8-8

Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or

by any means or stored in an el ectronic database or r etrieval system w ithout the expre ss written cons ent of the American Bar A ssociation.

he fear of contrac ting

COVID-19 from a ma ndatory

in-person court appearance

may be grounds for se eking

withdrawal from represent a-

tion, according to o ne state ethics

committee. The committe e opined

that an attorney rep resenting a cli-

ent in an immigrati on court may

withdraw with permis sion if a court

has no COVID-19 s afety protocols in

place and an in-person appearance

is required. AB A Litigation Section

leaders agre e that the opinion strikes

an appropriate balance between

attorney safety a nd client repre-

sentation. Bu t they caution that the

outcome may have been di erent

in states that follow th e ABA Model

Rules of Professional Conduct.

In Ethics Opinio n 1203, the

New York State Bar Associa tion

Committee on Professional Ethics

responded to an attorney’s inquiry

about whether w ithdrawal from rep-

resentation was eth ical when the

attorney was mand ated to appear for

an in-person conference during the

COVID-19 pand emic, and where the

court had no sa fety protocols to limit

the spread of the coro navirus. The

committee opin ed that the fear of

contracting COVID -19 may have a det-

rimental impact on client representa-

tion and that unde r New York Rule of

Professional Conduct (NYRPC) 1.16(d),

1.16(c)(1), and 1.1 6(c)(10), counsel is

permitted to withd raw. The commit-

tee reasoned that f ear of contracting

COVID-19 could u ndermine counsel’s

eectivenes s by forgoing add itional

appearances, motions, conferences,

and witness testim ony in an eort to

conclude a hearing.

The committee c autioned, how-

ever, that permission fro m the tribu-

nal is required a nd that counsel must

take reasonabl e steps to ensure that

the client is not pre judiced after with-

drawal. “The e ect of the New York

ethics opinion is that the appropriate

COVID-19 Fears May Be Grounds for

Withdrawal

balance between attorney safety and

client represen tation is left at least in

part to the discreti on of the courts.

We have to hope and trust that th e

courts will get it r ight,” oers Laura

K. Lin, San Fra ncisco, CA, cochair

of the Litigation Sec tion’s Ethics &

Professionalism Committee.

“It would be dan gerous to have a

hard and fast ru le permitting with-

drawal without per mission of the tri-

bunal, and co urts should consider the

ways in which the lawyer ’s concerns

may aect repres entation before per-

mitting withdrawal,” explains Tiany

Rowe, Washington, DC , cochair of

the Section’s Profe ssional Liability

Litigation Committee. A tribunal

should analyze “questions surrounding

transmission of th e illness, the sever-

ity of the illness if c ontracted” before

allowing counsel to withdraw because

of safety reason s, Rowe continues.

Because the attorney is appear-

ing in immigratio n court, Rowe

observes, th e concerns “may be

heightened if hi s client is detained

by U.S. Immi gration and Customs

Enforcement or U. S. Border and

Customs Protectio n, where the inabil-

ity to socially dist ance and lack of

resources to provide al l detainees

with face coverings or oth er protec-

tions” dieren tiates fears of contract-

ing COVID-19 from other illnesses.

Flexibility in con sidering the facts

and circumstances surrounding

the request to withd raw is needed,

Lin acknowledges.

The legal profes sion’s embrace

of technology during the pandemic

provides additional solutions short

of withdrawal, notes Li n. “We’ve

seen a monume ntal leap forward in

the legal profes sion’s comfort with

remote proceedin gs over the past

six months,” Lin st ates. This leap for-

ward, opines Li n, will allow the pro-

fession to become m ore inclusive not

just related to COVID -19, “but has

longer-term inclusi vity benef‌its for a

By Christopher G . Binns, Litigatio n News Contributing Editor

broad range of at torneys for whom

travel or in-person proceedings

may be dicult,” su ch as individu-

als with disabiliti es or lawyers with

familial oblig ations. If the parties are

not prejudiced , another option that

acknowledges the safety concerns

surrounding COVI D-19 without with-

drawal is to delay or stay the p ro-

ceedings, Lin suggests.

Leaders warn practitioners to

pay close attention to the wo rding of

the ethics rules i n their jurisdiction.

Both the ABA Mod el Rule 1.16 and

NYRPC 1.1 6 provide that an attorney

“shall” withd raw when the lawyer’s

condition “mater ially impairs the law-

yer’s ability to repre sent the client,”

Lin emphasizes . But New York’s rules

add section 1 .16(c)(9), which permits

withdrawal if the lawye r’s mental or

physical conditio n “renders it dif-

f‌icult to carry o ut the representa-

tion eectively.” The M odel Rules of

Professional Conduct do not have this

additional language, which makes the

New York rule more f‌lexible .

“The New York opinion i s protect-

ing lawyers in adv ising that a lawyer

need not determ ine that his or her

representation would necessarily

be ‘materially im paired’ by fear of

COVID-19 in orde r to seek permission

to withdraw,” muses Lin. T he New

York opinion is simulta neously “pro-

tecting client s by directing law yers

to fully consider w hether their fear of

infection coul d be detrimental to the

representation,” she elaborates. She

cautions that with drawal may not be

permitted in st ates that have adopted

the ABA Model Ru le if the attorney

cannot demo nstrate that fear of con-

tracting COVID -19 would “materially

impair” rep resentation.

8 | S ECTION OF LITIGATION

ETHICS STR UGGLES IN THE LEGAL WOR LD