Jun. 26, 2020
Pandemic professional responsibility: Legal ethics and COVID-19
The legal complications caused by COVID-19 have raised some novel legal issues, but there are no special COVID-19 ethics rules, they are the same rules we have always had, applied to novel circumstances.
While much of society was #SafeAtHome earlier in 2020, lawyers remained busy at work — remotely that is, to determine how legal obligations were changing with electronic filings, unexpected court closures, and frustrated clients. For lawyers with pending court cases and looming deadlines, quarantine felt less like a staycation and more like house arrest. Now that courts are up and running remotely, lawyers are challenged to ensure they tackle the backlog of cases effectively — and ethically.
New Challenges, Same Rules
The legal complications caused by COVID-19 have raised some novel legal issues, but there are no special COVID-19 ethics rules, they are the same rules we have always had, applied to novel circumstances. Here is the good news: Those of us who have devoted decades of practice studying legal ethics are not going to leave lawyers without assistance or support. Bar associations around the country are stepping up to offer guidelines and guidance to practitioners wading through the hopefully temporary “new normal.”
Virtual client meetings and court appearances challenge lawyers to balance ethical rules related to concepts such as competence, communication and confidentiality, and also to generate chemistry as they build rapport remotely. A working knowledge of applicable rules will enable practitioners to anticipate ethical issues before they threaten to derail an active case.
Generally, COVID-19 ethical concerns can be broken down into a few major categories of ethical areas. Here are a few.
As a preliminary matter, lawyers must be familiar with what ethics rules apply to the temporary new normal. This familiarity implicates the basic rule of competence. Rule 1.1 advises that a lawyer “shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” Competence is legal service is defined as the “learning and skill,” as well as “mental, emotional, and physical ability reasonably necessary for the performance” of legal service.
Modern lawyers must be technologically proficient in order to handle a remote practice, which includes a working knowledge of relevant virtual platforms and communication methods — including how to engage remotely and securely in order to maintain client privacy.
Most lawyers communicate with clients electronically some of the time, but, in recent months, it has become most of the time, due to office closures. Whichever method is used, lawyers must electronically impart all of the same information they are used to providing in person, per Rule 1.4, Communication with Clients, which requires in subsection (a), a lawyer to:
(1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by these rules or the State Bar Act;
(2) reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation;
(3) keep the client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.
Communicating with current clients and meeting with new ones requires lawyers to explore the comfort level of each client with the various forms of electronic communication, and where such is lacking, resort to telephone contact — even though it may be more time consuming in some cases — depending on the information sought to be relayed.
With tech-savvy clients, most communication is done online. But if lawyers are not working in their offices due to COVID-related closures, they must ensure they are using secure connections and settings, in terms of other people in the immediate proximity, if they are working at home.
Rule 1.6(a) states, “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent, or the disclosure is permitted by paragraph (b) of this rule.” Section 6068 states that it is the duty of an attorney “(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
Out of the office and away from secure networks, one of the ways lawyers cut corners on confidentiality is by communicating on unsecured networks. During my time on the California State Bar Committee of Professional Standards and Conduct we authored Opinion 2010-179, which tackled the question of whether a lawyer violates the duties of competence and confidentiality by using technology to store or transmit confidential client information when the technology might be vulnerable to unauthorized access by third parties.
One of the factors to consider we discussed was client instructions. We noted that when a client has instructed the lawyer to avoid using certain types of technology due to concerns about confidentiality, or when a lawyer is aware others can access a client’s electronic devices or accounts, such technology should not be used. These are very important considerations in light of COVID-19 remote work arrangements.
Lawyers should also resist the temptation to conduct client business in the presence of non-essential others. All virtual meetings should be conducted in a secured area (i.e., not the dining room table at home with family members milling around), and lawyers should resist the temptation to ask a friend or member of building staff to transport a client file if their office is closed, in order to protect confidential information.
Post Pandemic Professional Responsibility
Professionals dedicated to legal ethics look forward to continuing to write and present on best practices in a post-pandemic era, in order to help all lawyers maintain professional excellence, upholding standards of practice — both effectively and ethically.