By Saul Singer
Goodbye to Rosie, the Queen of Corona,
see you, me and Julio down by the schoolyard
— Paul Simon (1972)
With the spread of the coronavirus pandemic, we would all like to say goodbye to “the Queen of Corona,” but COVID-19 is likely to be with us for some time.
By now, everyone should be familiar with the basic protective steps defined by health authorities. However, the spread of the coronavirus has caused massive disruption and created a potential minefield for D.C. lawyers, who retain all their ethical duties under the Rules of Professional Conduct. Though there are important issues that may arise in the face of the coronavirus threat — or any other threat to life and health, for that matter — the fundamental “prime directive” remains: thou shalt protect thy client. Your ethical obligations do not change, regardless of whether you are ill, your client is sick, or the courthouse is closed.
Below are some basic guidelines to assist lawyers in complying with their ethical duties during this pandemic and beyond.
Lawyer Becomes Ill
In the face of increased risk of serious incapacitating illness or worse, lawyers must have a ready succession plan for other lawyers to assume responsibility for legal representations and, at a minimum, a plan for promptly communicating with clients and for taking necessary protective action. In larger firms, other firm lawyers may be able to step in to take over a representation on short notice, but even such firms should develop a contingency plan to address how client matters will be handled in the event of mass lawyer incapacity or unavailability.
Assuring the continuity of representation can be more difficult for solo practitioners, where there is often no other lawyer to step in to handle cases in the event of the solo’s illness or death. As such, Comment [5] to Rule 1.3 provides that each sole practitioner should prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client that the lawyer is no longer engaged in the practice of law, and determine whether there is a need for immediate protective action. Solos should consider partnering with each other in reciprocal agreements to advise clients and courts when the lawyer has become incapacitated or is deceased.
Client Becomes Ill
One important result of COVID-19 is a reduction in personal contact between lawyer and client and, as such, potentially less lawyer awareness of the client’s health status. In this environment, attorneys may wish to ask clients to disclose developing health issues to them because a client’s illness may necessitate a continuation of the case, a waiver of appearance, or a request for remote attendance.
Rule 1.4 (Communication) requires that lawyers initiate and maintain the consultative and decision-making process even when clients fail to do so. When a seriously ill client develops a lack of capacity to proceed, Rule 1.14 (Client with Diminished Capacity) provides that the lawyer “may take reasonably necessary protective action including, in appropriate cases, seeking the appointment of a surrogate decision-maker.” However, the much-preferred option is for the lawyer to determine now how the client would want the representation to be handled in the event of incapacity.
Working Remotely: Confidentiality Issue
Pursuant to D.C. Rule 1.6 (Confidentiality of Information), the lawyer’s duty to maintain the client’s confidences and secrets is extremely broad. As such, lawyers working remotely or from other irregular or nontraditional sites must carefully consider the security and confidentiality of their policies, procedures, and systems. Some obvious basics include protecting computer systems and physical files and ensuring that telephone and other conversations and communications remain privileged.
Included in the mandate of Rule 1.1 (Competence) is a lawyer’s duty to be sufficiently technologically proficient to protect client confidentiality. If a lawyer working remotely lacks such knowledge, then he or she should retain a competent technological expert to advise regarding the lawyer’s security systems.
Diligence in a Constantly Changing Situation
Lawyers must be diligent in monitoring the ever-evolving COVID-19 situation, including but not limited to court closings and orders regarding filings, appearances, and statute of limitations tolling, and adapt as necessary to conform with their ethical obligations under the Rules of Professional Conduct. Coronavirus may present more than health issues, including restrictions, delays, increased costs in international transactions, labor and employment issues, client solvency issues, and risks to entire industries. Lawyers must be prepared to address all these issues, and more.
Finally, the old dictum “what goes around, comes around” has ironically never been more relevant, and lawyers should exercise ultimate civility and good will when dealing with opposing counsel.
For ethics inquiries, please contact the D.C. Bar Legal Ethics Helpline at 202-737-4700 ext. 1010, or ethics@dcbar.org.
This article was originally published by the D.C. Bar.
SDCBA Editorial Note
By Edward McIntyre
This article from Saul Jay Singer and the DC Bar is both timely and an excellent reminder, in spite of COVID-19, of our primary ethical duty: protect our clients. There are two observations for California lawyers.
First, our rule 1.1 does not yet include the duty to be technologically proficient; a proposed amendment to rule 1.1 to that effect is now pending. Other California authorities, however, have continually stressed that in today’s world, competence requires a degree of technological competence (see, e.g., State Bar Formal Opn. 2010-179). This is certainly the case where client confidentiality is concerned given our obligations under Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6.
Next, California did not adopt ABA Model Rule 1.14 (Client with Diminished Capacity), so, for example, seeking the appointment of a surrogate decision-maker is not a rule-based ethical option for California lawyers. The article’s suggestion that a lawyer should determine from the client how the client wants the representation to continue in the event of incapacity is, however, excellent advice.
Finally, the SDCBA Ethics Hotline (619-231-0781) remains open, staffed by a member of the SDCBA Legal Ethics Committee who is there to help you.
Edward McIntyre is a professional responsibility lawyer and co-editor of San Diego Lawyer.