It is not the best of times, it is the worst of times. As the coronavirus catastrophe casts an ominous shadow over New York law firms, offices are closing, lawyers are working remotely, firms are activating their pandemic response plans, and their crisis management teams are assessing how best to serve clients while grappling with their own business operations and the well-being of employees. Dealing with deadlines and complex legal problems is second nature to lawyers, but working under enormous pressure in unprecedented conditions is a game changer. How should a lawyer ethically respond to the coronavirus crisis? Do heightened standards of professional conduct apply when a disaster strikes? What ethical obligations are owed to clients when a lawyer might need to self-quarantine to avoid potential exposure or to prepare for the possibility of illness? And, what if a lawyer is too sick to continue representing clients? The New York Rules of Professional Conduct provide some general guidance on the ethics rules that may apply in these dire circumstances.
Lawyer Incapacity, Competence and Communication
Rule 1.14 focuses on the client’s diminished capacity and the lawyer’s role in managing a representation where the client is incapacitated. The Rules do not specifically address lawyer capacity issues, except in the context of withdrawal from a representation. A lawyer is required to withdraw from a representation if his or her physical or mental condition materially impairs the lawyer’s ability to represent the client (Rule 1.16(b)(2)). Withdrawal is permissible if such a condition renders it difficult to carry out the representation effectively (Rule 1.16(c)(9)).
If a lawyer has made certain decisions to avoid the risk of exposure to coronavirus by self-quarantining, or if the lawyer is already ill and suspects it may be coronavirus, or is too unwell to continue representation in a matter, the duty to communicate in Rule 1.4 obligates the lawyer to communicate with clients regarding their matters. This Rule requires a lawyer to promptly inform the client of any decision or circumstance regarding which the client’s informed consent is required, to reasonably consult with the client about the means by which the client’s objectives are to be accomplished, to keep the client reasonably informed regarding the status of a matter, and to explain a matter to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.
Depending on the circumstances, the client-lawyer communication could involve how the lawyer’s personal health decisions or possible illness may impact or change the nature of the representation (whether transactional or litigation) and could address related issues such as meeting clients via teleconference rather than in-person, whether to continue or delay matters, or to consult with or retain another lawyer to assist. In addition, given the duties to competently and diligently represent clients (Rules 1.1 and 1.3), a lawyer should consider if any delays may harm or prejudice the client’s interests or if the lawyer’s inability to adequately prepare for a matter may make it difficult to continue the representation. If the lawyer’s physical health materially impairs his or her ability to represent clients, the lawyer must seek to withdraw from the representation and take all reasonably practical steps under Rule 1.16(e) to avoid foreseeable prejudice to the client’s rights, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any unearned part of an advance fee, and complying with applicable laws and rules.
Practice Continuity Plans
It may not be easy, but it is never too late for lawyers to consider and plan in advance for the unexpected to happen—impairment, incapacity or death—especially, if lawyers practice without partners, associates or employees. Competent representation involves protecting the client’s interests and this obligation encompasses several other duties, such as ensuring matters are not unreasonably delayed or neglected in violation of the duty of diligence in Rule 1.3 and safeguarding and returning client funds or property in compliance with Rule 1.15. The American Bar Association (ABA) and other state bar associations have issued comprehensive and practical guidance on disaster planning and the steps a lawyer can take to protect clients in the event of a sudden inability to continue practicing law. See ABA Formal Opinion 92-369 (1992); Planning head: Establish an Advance Exit Plan to Protect Your Clients’ Interests in the Event of Your Disability, Retirement or Death, New York State Bar Association Committee on Law Practice Continuity (2005).
Well before the COVID-19 outbreak, face-to-face client-lawyer communications had largely become a thing of the past. As email increasingly emerged as the preferred means of communication, there was a growing consensus among state bar association ethics committees around the country that there is a reasonable expectation of confidentiality and privacy in unencrypted email. From a practical standpoint, lawyers have been exercising “social distancing” with clients and third parties for some time, although not by choice, but by necessity, primarily to increase productivity and reduce costs using digital technology tools for practice. With the coronavirus pandemic, many lawyers are probably already well-adapted and well-equipped to serve clients from a (virtual) distance, despite some unusually drastic changes to their work environment. What is critical, however, is to ensure that such “distance lawyering” does not turn into “lawyer distancing” where lawyers, unknowingly or unintentionally, may become inaccessible or unresponsive to clients whose needs are left unserved or unmet in these times of calamity.
Competent representation under Rule 1.1 requires legal knowledge, skill and thoroughness, as well as preparation reasonably necessary for the representation. In the wake of the coronavirus disaster, this could involve remaining aware of current events, related legal developments and recent court orders in order to be ready to advise clients of rapidly changing situations and events and how they may implicate the client’s business, operations, finances and relationships. Clients rely on their counsel for advice, recommendations and updates, especially in times of crisis and unpredictability.
Supervision and Responsibility
As lawyers and firms start acclimatizing to these extraordinary times characterized by complex and novel issues coupled with exigent circumstances, they should remain vigilant to the many potential risks they could face along the way: missteps in client intake, conflicts of interest, mismanagement of workload, errors in judgment, poor advice, inadequate supervision of delegated work, unauthorized practice, and improper solicitation, all of which could pose possible ethical ramifications. Greater collaboration and teamwork is an effective risk prevention technique, especially in an uncharted work environment. Ultimately, law firms and supervisory lawyers are responsible under Rule 5.1 to ensure adequate supervision of client work and ethical compliance by firm lawyers.
Confidentiality, Privacy and Security
The COVID-19 crisis raises particularly challenging issues for lawyers and firms regarding how to protect the confidentiality, privacy and security of sensitive client and employee information while at the same time taking measures to safeguard the health and safety of other clients, employees, third parties and the public. “Confidential information” is very broadly defined in Rule 1.6(a). In addition to wrestling with these types of issues, lawyers and firms should remain on high alert and closely monitor cybersecurity risks and privacy and data security threats and breaches that may affect client and firm proprietary data, including watching out for suspicious emails from hackers who may be using the coronavirus situation as an opportunity to spread malicious content. Lawyers and firms should also be careful about ensuring any home technologies such as visual or voice-enabled devices and video products do not endanger client confidentiality, privilege or cybersecurity.
No Lockdown on Legal Ethics
As lawyers look back at happier times and try to focus on better days ahead, beyond the effects of the coronavirus, they should continue to stand by their clients and exercise their professional obligations at the highest level, always remembering their oath of office never to wash their hands off their ethical duties to clients.
Devika Kewalramani is a partner at Moses & Singer and chair of its legal ethics and law firm practice. She is the immediate past chair of the Professional Discipline Committee of the New York City Bar Association.