By Eric R. Deitz
Although the San Diego Superior Court plans to resume more than emergency services beginning May 26, 2020, the changes wrought by COVID-19 upon the legal profession will reverberate for the foreseeable future. As the response to the coronavirus pandemic enters a new stage, it remains ever important for attorneys to recall and abide by the ethical obligations they owe to their clients, the courts and other counsel. The need to comply with the duties of competence, diligence, communication, confidentiality, and supervision is heightened at a time of unprecedented challenges to the profession.
Rule 1.1 of the Rules of Professional Conduct addresses the obligation of an attorney to perform legal services with competence. “For purposes of this rule, ‘competence’ in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.” Per Rule 1.0.1(h), reasonable or reasonably, “when used in relation to conduct by a lawyer[,] means the conduct of a reasonably prudent and competent lawyer.”
While subsection (i) of Rule 1.1 is always relevant, subsection (ii) has assumed greater significance in the current climate. Added stressors, whether related to the health or financial well-being of attorneys, their families or friends, as well as the financial health of law practices large and small, serve to test all of our mental, emotional, and physical abilities.
Extra vigilance is required to ensure compliance with the rule of competence, not only for yourself but also those within your practice whom you supervise. (See, e.g., Rules 5.1 and 5.3.) In accordance with the rules of competence and diligence, solo practitioners must consider succession planning in the event they are disabled by illness or otherwise unable to attend to the needs of their clients, and law firms of all sizes should develop and implement safeguards and contingency plans to ensure deadlines will be reliably met in the event of attorney illness or unavailability.
The rule of diligence (1.3) provides that:
(a) A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.
(b) For purposes of this rule, “reasonable diligence” shall mean that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.
Comment [1] to Rule 1.3 notes this rule addresses only a lawyer’s responsibility for his or her own professional diligence, and refers to Rule 5.1 and 5.3 with regard to the duty to supervise others. Consistent with the duties of competence and diligence, lawyers who practice in multiple courts must educate themselves and remain current on evolving emergency orders that affect appearances and filing deadlines.
As before COVID-19, attorneys must keep clients apprised of developments affecting the representation. Among other obligations, Rule 1.4 requires that an attorney promptly informs a client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by the Rules of Professional Conduct, reasonably consults with the client about the means by which to accomplish the client’s objectives in the representation, and keeps the client reasonably informed about significant developments relating to the representation, which includes promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.
Increased reliance on remote working in response to the pandemic has not only altered daily routines – thereby increasing the risk of missed deadlines that warrants additional protections to avoid the same – but also implicates concerns with regard to the duty to communicate, as well as the duty of confidentiality (1.6). Not only must attorneys be sufficiently familiar with available technology and its use to comply with the duties of competence, diligence and communication, they must also avoid inadvertently breaching the duty of confidentiality by not adequately protecting client information that is transmitted or stored electronically.
It remains unclear when current social distancing mandates will be sufficiently relaxed so as to allow in-person meetings, and clients and counsel alike may even then be hesitant to confer face-to-face. Remote working and, indeed, remote appearances, are likely to remain fixtures of the profession as proficiencies and acceptance increase.
The absence or infrequency of physical interaction with colleagues and staff does not alter the ethical duty to supervise. (Rules 5.1 and 5.3.) Consistent with the above-discussed obligations, lawyers who oversee other attorneys and non-lawyer personnel must undertake reasonable efforts to ensure that law firms and their constituent lawyers and non-lawyer assistants conform their conduct to comply with the Rules of Professional Conduct and the State Bar Act.
In practical effect, the duty to supervise may encompass many responsibilities, from ensuring that conflict screening procedures remain robust and uniform, calendaring is timely and consistent, and electronic filing and service of documents is completed when due. While COVID-19 has altered the legal profession in myriad ways, your ethical duties remain unchanged.