Quandaries and Quagmires: Legal ethics, risk management in pandemic.

Byline: Charles Lundberg

In a span of less than two weeks, the coronavirus outbreak has caused unprecedented disruption in law firms and created a host of new issues for firm general counsel and ethics partners. Here is a sampling of new ethics and risk management issues that have arisen almost overnight:

A new paradigm for civility and reasonableness?

Last week, a statement by the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee called for a new emphasis on lawyer civility:

"In light of the unprecedented risks associated with the novel Coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk. . . Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations."

A decision out of the federal district court in Chicago last week (known among ethics nerds at "the Unicorn case") vividly illustrated the new paradigm.1 A company that creates "life-like portrayals of fantasy subjects" such as elves and unicorns sought an emergency hearing in its trademark infringement suit. The court deferred the hearing for a couple weeks citing health and safety issues arising from the coronavirus.

Plaintiff's counsel promptly moved for reconsideration on an emergency basis. The court was not amused: "Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment. . . . If there's ever a time when emergency motions should be limited to genuine emergencies, now's the time."

The opinion concluded with this gem: "The filing calls to mind the sage words of Elihu Root:

"About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop. . . . The world is facing a real emergency. Plaintiff is not."

Now the point is this: A month ago there would have been nothing particularly remarkable about counsel pressing for an expedited hearing as he did. But everything has changed now. The...