Professional Responsibility, Legal Ethics, and COVID-19

I hesitate to post this.  I expect someone will interpret it as me saying that a lawyer violates the Rules of Professional Conduct by contracting the coronavirus.  If that someone is you, you are intentionally mispresentating my message.

Legal Ethics

Here are my quick thoughts on the interplay between COVID-19 and a lawyer’s professional responsibilities. Unless otherwise stated, references to a rule or rules are to the Vermont Rules of Professional Conduct.

  1. General

Rules 1.1 and 1.3 require lawyers to provide clients with competent and diligent representation.  To me, a competent & diligent lawyer stays abreast of the impact that current events have on the judicial system.

The Vermont Judiciary posts updates and recommendations here.  The most recent was posted on March 11.  Additional resources can be found on the websites of the Vermont Department of Health and the Governor

For those of you who practice in Chittenden Civil, see the March 12 message from Judge Toor that I’ve pasted in at the end of this post.

  1. Prepare: what if you become ill or self-quarantine?

Rule 1.4 requires a lawyer keep a client reasonably updated as to the status of a matter and to provide clients with enough information to make informed decisions about the representation.  If you are not available or have limited availability, a client should know that.

Comment [5] to Rule 1.3 suggests that diligent representation includes having a plan to protect clients’ interests if a lawyer is incapacitated.  This is particularly important for sole practitioners.  In addition, Rule 1.16(a)(2) mandates withdrawal if a lawyer’s physical condition materially impairs the lawyer’s ability to represent the client.

For smalls and solos, a post on succession planning is here.  For law firms, my post on disaster planning is here.

For now, and given the duties of competence, diligence and communication:

  • Who will contact clients, courts, and opposing counsel if you are incapacitated?
  • Who will deliver files, return unearned funds, check your calendar?
  • Who will check email, voice mail, the U.S. mail?
  • Who will handle hearings, depositions, other events that do not get postponed or rescheduled?
  • Who will ask to have those events rescheduled?

For the foreseeable future, I urge all lawyers to be accommodating when considering requests from opposing counsel that are related to COVID-19.  Specifically, requests to extend deadlines, appear by phone or Skype instead of in-person, or to reschedule hearings, depositions, mediations, or meetings.

  1. Prepare: what if your client becomes ill or self-quarantines?

Rule 1.2 requires a lawyer to abide by a client’s decisions concerning the objectives of a representation. What if a client cannot communicate with you?  For now, it might make sense to seek advance direction from clients in matters where critical junctures are imminent.

Also, keep in mind that Rule 1.14 applies whenever a client’s capacity to make adequately considered decisions about the representation is diminished, no matter the reason. The rule walks through the steps that a lawyer may take when representing a client with a diminished capacity.

  1. Final Thoughts

Take care of yourself.  Be mindful of others who are affected by COVID-19.  And, finally, remember that you are intentionally reading this post wrong if you interpret it as me saying that a lawyer violates the rules by contracting the virus.

Peace.

******

For those who practice in Chittenden Civil, here is Judge Toor’s March 12 update:

“I want to keep you all informed with regard to how the courts are addressing the COVID-19 pandemic. The Supreme Court has created a task force that is working daily on the issue and is in direct contact with the Executive Branch and particularly the Department of Health. We are currently having all-judge daily telephone conferences with the Supreme Court. This is a fast-moving issue and things are changing daily. The Court has been updating statements on the court website daily, which I urge you to read, and is considering various options as to state-wide steps to address the issue.

We do NOT want anyone coming to court if they have any reason to believe they may be ill or should be in self-quarantine due to travel or exposure to others who have tested positive. Posters will be going up at the courthouse to that effect soon. We expect the website will soon reflect that requests for continuances due to health concerns may be made by email to avoid people coming to court to deliver paper requests. As you know, I will not require a request in advance for phone appearances when someone is potentially ill if the matter is not one at which evidence will be taken. We are all planning to be very liberal with requests to appear by phone or continue matters where parties are concerned about risks to their health in coming to court, whether due to their age, underlying medical conditions, or other concerns. We are discussing other ways to reduce court events that bring large numbers of people together in the various dockets, without bringing the court system to a grinding halt.  I’m sure you know that some courts in other jurisdictions have already cancelled jury draws, jury trials and other court events.

Currently, the trial courts have discretion with respect to such things as jury trials and draws until the Supreme Court decides otherwise. I have decided today to move our next jury draw from  April 9 to May 7 (and will discuss that with the lawyers in those cases at the pretrials that are currently scheduled), and will revisit whether that can go forward as we see how the illness progresses in the community. I plan to contact the lawyers who already have a jury selected for a trial later this month to discuss whether we should proceed as scheduled. I welcome any thoughts from any of you as to how you think this court, and the courts statewide, should be proceeding. Feel free to email me directly with suggestions or comments—as long as they do not relate to a particular case—at helen.toor@vermont.gov. Please practice social distancing and do all you can to stay healthy.”