Legal Ethics and the Coronavirus
| Publication year | 2020 |
| Author | Neil J Wertlieb, with editorial and other contributions from Kevin Mohr and Suzanne Burke Spencer |
Neil J Wertlieb, with editorial and other contributions from Kevin Mohr and Suzanne Burke Spencer*
Neil J Wertlieb, the author of this article, is a Founding Member and Co-Chair of the California Lawyers Association Ethics Committee and the Co-Chair of the Business Litigation Committee of the Business Law Section. Mr. Wertlieb is an experienced transactional lawyer, educator, and ethicist, who provides expert witness services in disputes involving business transactions and corporate governance, and in cases involving attorney malpractice and attorney ethics. For additional information, please visit www.WertliebLaw.com. The views expressed herein are his own.
As fears and concerns regarding the spread of the coronavirus COVID-19 grow—and an increasing number of courts, schools, offices, and gatherings are closed or cancelled—it is important to keep in mind your ethical responsibilities as lawyers during this time of crisis. Although the COVID-19 pandemic is having a significant effect on how lawyers will be practicing over the next few weeks or months (e.g., from home rather than office), it is important to appreciate that the Rules of Professional Conduct (the "Rules") and the duties they set forth are not suspended.
On behalf of the Ethics Committee of the California Lawyers Association, we offer the following reminders for your consideration.1
At all times, a lawyer must perform legal services with "competence," defined in rule 1.1 as "the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of [required legal] service."
Personal issues relating to the spread of the coronavirus, such as school closures and the lack of childcare, or other responsibilities for family members or concern for their health, normally would not excuse a lawyer's duty of competence to the client. Lawyers are expected to put their clients' interests ahead of their own personal interests or issues.2
During the current COVID-19 crisis (and any other similar emergency), lawyers should be prepared to continue to competently protect their client's interests. Some obvious and simple measures include:
- If you use a laptop or tablet, keep it charged and available.
- Keep track of your calendar, and ensure that you do not miss filing and other client-related deadlines.
- Be aware of court, agency, and other closures or limitations, and the impact such events may have on such deadlines (or your ability to comply with such deadlines).3
- Make sure that you have access to necessary client files and other client-related data in the event you are working remotely and your office is inaccessible or your office staff is unavailable.
- Ensure that your means of remote access is appropriately protected against potential hacking and other cyberattacks (e.g., by use of a secure virtual private network or VPN).
- If working remotely, consider ways to have incoming hard-copy mail rerouted or scanned and delivered electronically.
- Be available and responsive to your clients' needs, even while maintaining social distancing (for example, by use of electronic communication).
- If working remotely, make sure your clients and colleagues know how to reach you by phone. Give them cell or home phone numbers, as needed, so that clients and essential personnel have a reliable way to reach you, even if you are not in the office.
Attorney absences or illness may also give rise to situations in which clients in need of legal services cannot get them from their regular providers. These clients may need help in an emergency concerning legal matters that are not within the lawyer's regular area of practice. In such situations, the Rules recognize that a client's need for emergency legal services may excuse the lawyer's lack of competence under particular circumstances. Paragraph (d) of rule 1.1 provides that, in an emergency, "a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required," but only "if referral to, or association or consultation with, another lawyer would be impractical." The rule further provides that such assistance in an emergency "must be limited to that reasonably necessary in the circumstances."
[Page 7]
During a situation such as is presented by the COVID-19 pandemic, where personal and professional responsibilities can be in direct conflict, the resulting pressures on a lawyer's time might lead the lawyer to delegate client work or other responsibilities to another lawyer within or outside the lawyer's firm, or to nonlawyers in the lawyer's firm. In addition, those upon whom you rely might become unavailable or distracted by their own personal concerns.
The Rules provide that lawyers, whether they have overall law firm management responsibilities or not, can be held responsible if they do not take reasonable steps to ensure lawyers in the firm they manage or lawyers they supervise are in compliance with their ethical duties, including competence and confidentiality. Rule 5.1 requires that lawyers with "managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply with" the Rules. Rule 5.1 further requires that any lawyer with "direct supervisory authority over another lawyer ... shall make reasonable efforts to ensure that the other lawyer complies with" the Rules.
Pursuant to rule 5.3, lawyers have similar responsibilities for the conduct of their non-lawyer assistants, including any work that has been outsourced (e.g., contract work) or offshored (e.g., back office work such as human resources or payments).
In addition, many lawyers...
To continue reading
Request your trial