The Ethics of Advising Clients Awaiting Trial During COVID-19

• Author: Mark A. Drummond
• Pages: 28-29

By Hon. Mark A . Drummond (Ret.), Litigatio n News Associate Editor

our personal inju ry client is 87 years old, i n

poor health, and t he jury trial that was to start

in March 2020 was po stponed inden itely. You go

out and purchase a $29.99 ring l ight for the remote

mediation. That i s the extent of your expend itures

for your entry into the v irtual world. The mediation goes

nowhere. Delay favors the defendant.

Your judge says that, if you waive a jury, she can give you

a bench trial in t wo months. If you want a jury trial, sh e

can offer a vir tual jury trial in six mont hs and an in-person

socially dis tanced trial in the last ha lf of 2022, at the earliest.

However, she adds that the date in 20 22 may be a mov-

ing target depe nding on whether the state supreme court

The Ethics of Advising Clients

Awaiting Trial During COVID-19

approves remote jury select ion in criminal cases. Cr iminal

cases will go to t he head of the line. How do you advise your

client? What is your professional responsibil ity?

This scena rio touches many of the ABA Model Rules

of Professional Conduct . To save space, I will cite the r ule

number and will it alicize the pertinent la nguage. The mai n

three categorie s to consider are time, disclosure to the c li-

ent, and your competenc e in the virtual world. With rega rd

to time, Rule 1.3 st ates, “A lawyer shall ac t with reasonable

diligenceand promptnessin repres enting a client.” Rule 3.2

adds, “A lawyer shall make reason able efforts toex pedite

litigationconsistent with the inte rests of the client.”

For plaintiff ’s counsel representing an elde rly person,

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28 | SECTION OF LITIGATIO N

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

PRACTICE POINTS