Ethics in Pandemics: the Lawyer For the (crisis) Situation

Ethics in Pandemics: The Lawyer for the (Crisis)

Situation

RAYMOND H. BRESCIA*

ABSTRACT

Lawyers often respond to client crises. But a client crisis is not necessarily a

crisis for the lawyer when the lawyer is competent, prepared, and trained to

handle that crisis. More and more, though, lawyers are asked to face novel cri-

ses that are so pervasive that those lawyers struggle to provide competent,

effective, and zealous service to their clients due to those crises. In the midst of

the COVID-19 pandemic, lawyers sheltered in place while their clients suffered

immense hardship, for example, in prison or detention where the virus spread

like wildf‌ire, or homebound, forced to remain with an abuser. The Model Rules

of Professional Conduct provide some limited guidance to lawyers dealing with

emergency situations and there has been some tinkering along the margins of

the rules in response to recent crises, particularly as those rules address the

unauthorized practice of law in jurisdictions where emergencies arise. To date,

legal scholarship has not considered the ways in which what I call crisis law-

yering may be a mode of practice many, if not all, lawyers will face throughout

the course of their careers. By using the Model Rules as a starting point for the

analysis, this Article explores the somewhat disjointed ways in which the rules

that govern the practice of law offer guidance to the lawyer facing novel, perva-

sive crises. It also addresses the needs of lawyers operating in f‌ields where they

may confront crisis situations and seeks to recognize that crisis lawyering may

be a form of practice that is, itself, trans-substantive, demonstrating distinct

similarities across different areas of practice. This Article attempts to remedy

the absence of scholarship addressing crisis lawyering by analyzing the extent

to which the current rules governing the practice of law are or are not adequate

* Hon. Harold R. Tyler Chair in Law & Technology, Albany Law School. JD, Yale Law School; BA,

Fordham University. I would like to thank those who provided helpful feedback on earlier drafts of this piece,

including Scott Cummings, Stephen Gillers, Peter S. Margulies, Richard D. Marsico, and Michael J. Wishnie. I

am also grateful for the comments I received from the members of the Association of American Law Schools’

Section on Professional Responsibility, particularly Susan Saab Fortney, Leslie C. Levin, Melissa Mortazavi,

and Irma S. Russell, as well as my colleagues at Albany Law School, especially Ava Ayers, Patricia

Youngblood Reyhan, and Sarah Rogerson, who offered comments on earlier drafts of this Article. I also

received excellent administrative support from my colleague, Sherri Anne Meyer, and research assistant sup-

port from Albany Law School students Alex-Marie Baez, Claire Burke, Hannah Hage, Victoria Lang, and

Lauren McCluskey. I am, of course, solely responsible for all errors and omissions. © 2021, Raymond H.

Brescia.

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to the task of providing guidance—and accountability—to lawyers dealing with

such situations. It also offers recommendations for how we may consider

amendments to those rules to better ref‌lect the needs, interests, and obligations

of lawyers dealing with crisis situations so that lawyers may serve their clients

better and more effectively when faced with such crises.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

I. DEFINING A “TRUE” LAWYER CRISIS. . . . . . . . . . . . . . . . . . . . 303

A. A CLIENT CRISIS IS NOT ALWAYS A CRISIS FOR THE

LAWYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

B. NOVEL, PERVASIVE CRISES . . . . . . . . . . . . . . . . . . . . . . . 305

C. BENDING THE RULES: CRISES AND THE UNAUTHORIZED

PRACTICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306

D. HOW LEGAL ETHICS SCHOLARSHIP ADDRESSES

LAWYERING IN CRISIS SITUATIONS . . . . . . . . . . . . . . . . . 309

II. LEGAL ETHICS AND LAWYERING IN NOVEL, PERVASIVE

CRISIS SITUATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313

A. COMPETENCE IN CRISIS . . . . . . . . . . . . . . . . . . . . . . . . . . 317

1. THE STANDARD OF CARE IN CRISIS SITUATIONS . . . . . . . . . . 317

2. PREPARING FOR THE UNEXPECTED . . . . . . . . . . . . . . . . . . . 320

3. COMPETENCE AND CREATIVITY . . . . . . . . . . . . . . . . . . . . . 321

4. MANAGING THE LAW OFFICE IN CRISIS TO MAINTAIN

COMPETENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

B. THE ACCESS-TO-JUSTICE CRISIS IN CRISIS SITUATIONS. . 330

C. CONFLICTS IN CRISIS SETTINGS . . . . . . . . . . . . . . . . . . . . 331

D. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336

1. DISCLOSURE PERMITTED UNDER THE RULES IN LIMITED

CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

2. WORKING WITH OTHER PROFESSIONALS TO UNEARTH FACTS

RELATED TO RISK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340

3. PRESERVING CONFIDENTIALITY IN A NOVEL, PERVASIVE CRISIS 343

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III. AREAS FOR REFORM: A LEGAL ETHICS FOR CRISIS

LAWYERING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

A. PREPARING FOR CRISES AND DEVELOPING “CRISIS

COMPETENCE” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

B. COMPETENCE, MERITORIOUS CLAIMS, AND CREATIVITY 346

C. DEVELOPING TECHNOLOGICAL COMPETENCE TO DEAL

WITH NOVEL, PERVASIVE CRISES. . . . . . . . . . . . . . . . . . . 348

D. ADDRESSING THE ACCESS-TO-JUSTICE CRISIS THAT IS

EXACERBATED IN CRISIS SITUATIONS . . . . . . . . . . . . . . . 349

E. MANAGING CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . 352

F. ADAPTING CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . 352

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353

INTRODUCTION

Louis Brandeis famously used the phrase “counsel for the situation” to describe

how he saw his work as a lawyer.

1

For all lawyers, the “situations” in which the law-

yers f‌ind themselves will often vary by the client, as will the context in which the

lawyer is asked to assist that client. The situation the client faces, and for which legal

representation is sought, is often a crisis for that client. Indeed, clients ask lawyers to

handle client crises and those lawyers prepare to provide effective representation to

their clients by dispatching their duties according to the standard of care in most set-

tings: i.e., that they provide competent representation.

2

It is often for these reasons

that clients turn to their lawyers in the f‌irst place when in crisis.

3

But not all crises

are created equal and not every client crisis is a crisis for the lawyer. Whether it was

the foreclosure crisis of the late 2000s,

4

or the police accountability crisis of today,

5

1. See Hearings Before the Subcomm. of the S. Comm. on the Judiciary on the Nomination of Louis D.

Brandeis To Be an Associate Justice of the Supreme Court of the United States, 64th Cong. 287 (1916).

Brandeis was talking about the need for lawyers to exercise independent judgment in the representation of a cli-

ent or clients, but his classic phrase highlights the way unique situations can also create unique imperatives for

lawyers. I will explore Brandeis’s famous phrase at various times throughout this piece.

2. See MODEL RULES OF PROF’L CONDUCT R. 1.1 (2018) [hereinafter MODEL RULES] (setting forth lawyer’s

obligation to provide competent service).

3. See ABA COMM. ON ETHICS & PROF’L RESPONSIBILITY, FORMAL OP. 92-364 (1992), reprinted in ABA/

BNA LAWYER’S MANUAL ON PROFESSIONAL CONDUCT, 24, 26 (Aug. 26, 1992) (noting likelihood that client

has turned to lawyer in a crisis).

4. For a description of one community’s response to the foreclosure crisis following the Financial Crisis of

2008, see generally, Robin S. Golden & Sameera Fazili, Raising the Roof: Addressing the Mortgage

Foreclosure Crisis through a Collaboration between City Government and a Law School Clinic, 2 ALB. GOV’T

L. REV. 29 (2009).

5. See generally, Ibram X. Kendi, The American Nightmare, THE ATLANTIC (Jun. 1, 2020), https://www.

theatlantic.com/ideas/archive/2020/06/american-nightmare/612457/. [https://perma.cc/GT5X-L8XE] (describing

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