(Originally posted on March 25. Updated on April 4.)
The YouTube version of this post is here.
As I mentioned this morning, the Rules of Professional Conduct are rules of reason. Here are some thoughts on practicing reasonably during a public health crisis.
Competence & Communication
- Current Events
To me, competence includes understanding the effect that current events have on the representation.
For instance, on March 16, the Supreme Court adopted Administrative Order 49. It’s an emergency order that addresses judicial operations and it has been amended three times. Here are the Court’s March 16 Emergency Order, March 18 amendments, March 20 amendments, and March 24 amendments.
Finally, here is a post on Judge Toor’s message and order regarding operations in Chittenden Civil.
Competence includes understanding how the Judicial and Executive orders apply to you and your clients. It also includes staying abreast of new orders as they’re issued. Your duty to communicate with clients likely includes explaining to them how the orders will impact their matters.
- Emergency Advice & Assistance
Competent representation includes having the knowledge and skill required for the representation. However, here’s Comment  to the rule on competence:
- “In an emergency a lawyer may give emergency advice and assistance in a matter in which the lawyer does not have the skill ordinarily required [and] where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”
Diligence & Communication
Rule 1.3 requires lawyers to act “with reasonable diligence and promptness” on behalf of clients. Rule 1.4 requires lawyers to keep clients reasonably updated as to the status of their matters, to provide clients with enough information to make reasonably informed decisions about their matters, and to respond to clients’ reasonable requests for information.
In my opinion, when it comes to assessing reasonableness, context matters. Conduct that might have violated the rules last summer, might not now. While lawyers cannot abandon or ignore clients, I’d argue that they can keep the bigger picture in mind when prioritizing their days.
What if you become unavailable?
First, these are stressful times. Don’t forget your own well-being. Here is my post on coping with the stress & anxiety related to the public health crisis.
Now, what if you are stricken with the virus?
I have not shown any symptoms. Still, who knows what the future holds? So, today, I recommended that the Professional Responsibility Board plan for my unexpected unavailability. Develop a roster of lawyers able to do my job if I can’t. In my mind, I thought of it as my “Amii Stewart Recommendation.”
Because babe, as I was drafting it, I guaran-f’ng-tee you that I knock-knock-knocked on wood!
In short, none of us is immune.
Comment  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.
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 or events that have not been suspended or postponed?
KEY! If you have a succession plan, make sure someone knows where it is and who to contact when it’s triggered.
Your clients aren’t immune either.
Rule 1.2(a) requires a lawyer to abide by a client’s decisions concerning the objectives of a representation. What if a client cannot communicate their decisions to you?
Well, Rule 1.14 applies whenever a client’s capacity to make adequately considered decisions about the representation is diminished, no matter the reason. Initially, the duty is to maintain as normal a client-lawyer relationship as possible. At some point, doing so is no longer possible. Thus, the rule specifies situations in which a lawyer will be authorized “to take reasonably necessary protective steps” or “to make express considered judgments about the matter.”
In my view, and at the risk of being promoted to Captain Obvious*, it’s best that the client makes the decisions that the rules envision the client making. For now, some lawyers might have clients from whom it makes sense to seek advance direction, especially in matters with critical decision-points imminent.
*or would it be a demotion? I’ve always wondered which way the chain-of-command flows on obviousness.
Client Confidences and Working Remotely
I’m not sure what number immediately precedes “infinity.” Whatever it is, it’s the number of times that I’ve blogged or said that a lawyer has a duty to take reasonable precautions to safeguard client information, including reasonable precautions to prevent that inadvertent disclosure of or unauthorized access to client information.
Most of you are working from home. Do you have a dedicated workspace away from curious ears or bored and prying eyes? Are you working on a device that’s connected to others in your home? Are you on public Wifi? Are you – gasp! – chipping in with your neighbor to share the same Wifi? Should you set up a VPN?
Got this question from 3 different firms: no, Vermont’s rules do not prohibit an electronic signature on a trust account check.
Civility & Cooperation
99.99% of you rock. I heard one story, however, that saddened & maddened me. I urge all lawyers to be accommodating when considering requests for accomodations that are related to COVID-19. Rescheduling, posptoning, extending a deadline, you name it.
I blogged about civility & the pandemic here. It includes two examples of how NOT to act during the pandemic.
On that note, here’s an uplifting story. Judge Amy Totenberg is a United States District Judge in Georgia. Last week, Judge Totenberg issued an order related to court operations during the crisis. The order included:
- “Be kind to one another in this most stressful of times. Remember to maintain your perspective about legal disputes, given the larger life challenges now besetting our communities and world. Good luck to one and all.”
Oh, and for one of the more entertaining orders I’ve ever read – and another example of what courts will not consider to be an emergency – check out this post.
I know you are all doing your best. I am too. I’m not trying to scare you; I’m trying to lend guidance by sharing some of the considerations to keep in mind as you make decisions. Please continue to contact me with specific questions.
This post was general, for a broad audience. I didn’t address every question I received this week, several of which related to duties and rules not discussed here.
Still, I’ll end as I began: the rules are rules of reason.
In my opinion, no matter the duty or rule you’re analyzing, there is nothing unreasonable about acting in such a way as to minimize the risk of spreading or acquiring a deadly virus.
In the meantime, keep on knockin’.