As the leaves fall and the air gets colder, lawyers can become waylaid with the flu or another illness. A lawyer can face any number of health challenges that could prevent them from conducting their regular, fulsome practice. Sometimes, lawyers try to soldier through illness, pushing themselves to service clients, attend court appearances or meet deadlines, even when feeling under the weather.
However, a lawyer combating illness -- whether temporary or
long-term -- may face other ethical considerations in ensuring that their
practice is being sufficiently managed. Indeed, sometimes even the most dogged,
nose-to-the-grindstone lawyer may need to inform the client, ask for a
continuance or have a colleague fill in if he or she is ill.
The following provides some guidance on potential ethical obligations associated with sickness or personal health.
Duties of competence and diligence
Illness can place an attorney's duty of competence to a client at risk if he or she is unable to perform legal services in a sufficient and competent manner. See Rule 1.1 of the California Rules of Professional Conduct. Whether suffering from a serious flu that makes it extremely hard for an attorney to concentrate or dealing with long-term medical treatments that interfere with consistent work, lawyers should consider how their sickness may impact the services they provide to a client.
An attorney's duty of diligence typically demands that lawyers not fall behind. Rule 1.3(b) states that 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." These rules are considered within context, but a lawyer who is facing lengthy absences due to illness may have a duty to ensure that client's needs are still met.
Having a plan is key and communication is critical. Some appearances may have to be postponed or reassigned. A lawyer can also make a plan to ensure that a matter is staffed or monitored appropriately in their absence. By doing so, attorneys can make efforts to ensure that legal services are performed competently and diligently, even when they are out of the office.
Disclosure to colleagues serves client needs but can also help ensure that lawyers receive support from their firms while they are still experiencing challenges. Disclosure does not obligate a lawyer to share 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. The team can even help facilitate communications with a client.
Disclosing illness to clients
There are situations where coming down with an illness can require explanation or disclosure to the client. Rule 1.4 of the California Rules of Professional Conduct demands that attorneys keep a client reasonably informed of their case and provide enough explanation for a client to make informed decisions. Under Rule 1.4, a lawyer could be obligated to disclose an illness, or an expected absence, if it would have an impact on the representation or the client's ability to make informed decisions.
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. 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 or did not take other steps to ensure competent and diligent representation.
Duty of candor to the tribunal
Considerations of disclosure can at times extend to 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 some hearings and events are still occurring virtually post-pandemic, courts sometimes have required lawyers to disclose potential exposure to communicable diseases, such as COVID-19, before an in-person appearance.
The California Rules of Professional Conduct require attorneys not to make a false statement to the court. See Rule 3.3. For example, it may be necessary for an attorney to disclose the fact of illness if requesting a continuance of a hearing or trial due to that illness. Conversely, a lawyer should never exaggerate or misrepresent a health situation to a court in order to impact the schedule or where the lawyer is simply unprepared. That could violate the lawyer's ethical obligations of candor.
If an illness is impacting on the lawyer's ability to meet deadlines, the lawyer can discuss the need with other parties to the case. 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. If there are other considerations that suggest the lawyer will be unable to meet obligations to court or client in light of illness, a lawyer may need to consider withdrawing as counsel under Rule 1.16 of the California Rules of Professional Conduct, so that other counsel can be retained.
These tips may assist practitioners as they move into the holiday (flu) season.