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Law Practice,
Ethics/Professional Responsibility

Nov. 5, 2020

When an attorney is sick, who and when must they tell?

With flu season approaching and the COVID-19 pandemic enduring, there is extreme concern about the possibility of getting sick this winter.

Klevens shari web

Shari Klevens

Partner, Dentons US LLP

1900 K St NEW
Washington , DC 20006

Phone: (202) 496-7612

Email: shari.klevens@dentons.com

Clair alanna web

Alanna Clair

Partner, Dentons US LLP

Email: alanna.clair@dentons.com

With flu season approaching and the COVID-19 pandemic enduring, there is extreme concern about the possibility of getting sick this winter. Many are understandably concerned about the possibility of contracting the COVID-19 virus and transmitting it to family members, especially those in at-risk groups. For lawyers, in addition to those personal concerns, there is also anxiety regarding their ability to fulfill client obligations if hampered by COVID-19 or another illness.

While health issues are of course of particular concern now, the issue of how to handle short- or long-term illnesses is always a challenge for lawyers given the constant demands and deadlines that comprise the practice of law. In such circumstances, there may be a tension between the right to personal privacy and the need to ensure that the client's interests are protected. Below are some key considerations for attorneys dealing with illness.

The Decision to Tell Colleagues

After being diagnosed, one consideration for lawyers is whether to disclose the illness to close colleagues who can help to manage workload and provide support.

In situations involving COVID-19, the primary consideration is the safety of others and the need to isolate to avoid exposing others to the virus. Attorneys working in the office during this time should disclose the illness to colleagues and isolate immediately. Doing so also allows the firm to conduct contact tracing, while also treating medical information confidentially.

Disclosure to colleagues also serves another important purpose: to ensure that lawyers can receive support from their firms until their illness passes. Doing this does not require a lawyer to share all of their private information or even any private health information, but it can be critical to let other team members know when a lawyer needs additional help and support to meet deadlines or client needs. Giving the firm time to consider a support plan also can ensure that the firm can communicate any change to the representation to clients as soon as is necessary.

The Decision to Tell Clients

The question of whether an attorney's illness creates an obligation for lawyers to inform clients is a difficult one.

First, again, in situations involving COVID-19, a lawyer's first obligation will be to consider the safety of others and the need to avoid meeting in person with clients to avoid exposing others to the virus. Other, non-contagious, illnesses likely would implicate Rule 1.4 of the California Rules of Professional Conduct. Under Rule 1.4, lawyers have a duty to keep clients reasonably informed regarding significant developments and to the extent reasonably necessary to permit a client to make informed decisions. Depending on the circumstances, this could obligate lawyers to let clients know whether the lawyer is experiencing health issues that could impact the client's case.

For example, if a lawyer is unable to attend a hearing, it may or may not serve to prejudice the client. Some relatively inactive representations may not require special disclosure, such as where a short term illness arises; others may have pending deadlines or obligations that would otherwise require the lawyer's immediate attention. Under Rule 1.4, a lawyer could be obligated to disclose an illness if it would impact the representation and be necessary for the client to provide informed consent. Of course, ensuring that a client's needs are adequately met by other colleagues is also an option.

While a lawyer's illness could be a mitigating factor in any alleged failure to meet the standard of care owed to a client, a claim could still arise if a lawyer did not keep a client reasonably informed and/or did not take other steps to ensure competent and diligent representation.

The Decision to Tell the Court

Courts are concerned about the health and well-being of not only their employees, but also all others attending hearings and trials, such as members of the press and the public. Although many hearings and events are still occurring virtually, for any in person appearances, a lawyer may have an obligation to disclose an exposure, even where not personally ill. For example, a Pennsylvania lawyer was sanctioned recently after the court found that the lawyer had failed to take the pandemic seriously. After the lawyer informed the court that her son had tested positive for COVID-19, the court ordered a pending hearing to be conducted remotely, denying a continuance. The lawyer instead appeared in person at the hearing and purportedly refused to leave when asked, arguing that there was "no legal requirement" for her to disclose her quarantine or COVID status. The judge disagreed, criticized the lawyer's cavalier disregard of court procedures and directives, and entered an order banning her from entering court facilities until further notice (requiring her to produce evidence of negative COVID-19 tests for her and her family).

These considerations are very different if an illness is not contagious. Nonetheless, a lawyer will need to consider whether to ask for a continuance in a court schedule or ask a colleague to handle if not doing so would compromise a client's interests.

If more time is needed, lawyers should consider reaching out to opposing counsel to reach an agreement to extend deadlines. Because courts look to litigants to be cooperative and professional, it may be difficult to defend any refusal to accommodate an opposing party's illness. In the absence of an agreement, a motion to the court may help, but might require some additional disclosure regarding the health issues before it is granted. In the absence of all other solutions and in particularly severe circumstances, a lawyer may need to consider withdrawing as counsel under Rule 1.16(a) of the California Rules of Professional Conduct, so that other counsel can be retained.

With those considerations in mind, lawyers experiencing serious illness can ensure that their professional obligations are met and focus instead on their own recovery. 

#360351

Ben Armistead

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