COVID-19 Pandemic and Attorney Ethics: Adapting Legal Practice During Crisis
Explore the ethical obligations of attorneys during the COVID-19 pandemic, including maintaining competence, adapting to remote work, and staying abreast of court proceedings and deadlines. Learn how attorneys can navigate challenges while upholding their duty to clients. Presented by Erin Joyce, Esq.
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The COVID-19 Pandemic and Attorney Ethics An MCLE Presentation by Erin Joyce, Esq.
Fears about the spread of the virus and obligations to shelter in place do not abrogate a lawyer s duty to clients Legal Ethics and the Coronavirus How attorneys practice is changing dramatically (working remotely and often at kitchen table) Competing family concerns are not a sufficient basis for failing to communicate with clients Erin Joyce, Esq. erin@erinjoycelaw.com
Even in the pandemic an attorney has to perform legal services with competence, defined in Rule 1.1 as the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of [required legal] service. Personal issues relating to the stay at home orders, like child care responsibilities or inability to access the office won t provide a defense for an attorney s failure to perform with competence. Competence In an Emergency Rule 1.1(a) A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. Erin Joyce, Esq. erin@erinjoycelaw.com
Emergency Situations Rule 1.1(d) In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in an emergency must be limited to that reasonably necessary in the circumstances.
To perform with competence, a lawyer needs to become familiar with remote technologies New Tricks of the Trade Since staff is working remotely, more attorneys are learning to do administrative tasks they may not have needed to do before Attorneys need to be very careful to safeguard their clients confidential information working from home Consider cloud-based case management system which allows the attorney to work remotely with ease. Erin Joyce, Esq. erin@erinjoycelaw.com
The COVID-19 pandemic did not stop all court proceedings from moving forward Attorneys need to maintain control of their calendars and the new dates Calendar & Deadlines Check the case summaries and online dockets to confirm rescheduled trial and other dates Keep on top of the ever-changing emergency orders of the Judicial Counsel and the local Presiding Judges. Erin Joyce, Esq. erin@erinjoycelaw.com
Keep on top of the emergency rules which vary from county to county and agency to agency Court Closures Take advantage of remote hearing opportunities soon to come to Los Angeles Superior Court Get training on Zoom and other remote technologies for depositions, mediations and court appearances Erin Joyce, Esq. erin@erinjoycelaw.com
Client Files & Client-Related Data The time of the paper file is DEAD. Make sure your fee agreement provides notice of cloud storage of client documents Client is entitled to file upon termination and can inspect file or particular documents on reasonable notice erin@erinjoycelaw.com
You need to sure that your client files are secure working from home The attorney needs to use a state-of-the-art system of encryption so that the client files are not susceptible to hackers. erin@erinjoycelaw.com
Snail Mail Many offices were closed with little warning Hours for mail pick up are limited Important to monitor mail so that deadlines are not missed Need system of scanning incoming mail for electronic files Consider mail service (reasonable cost depending on volume)
Business and Professions Code section 6068(m) provides the two prongs of the duty to communicate oRespond to reasonable status inquiries oCommunicate significant developments in the client s legal matter Methods to communicate still available in spite of shelter in place orders oPhone oE-mail oTexts (risky) oUS Mail is still open Attorneys Still Need to Communicate even in the midst of the pandemic
Consider giving clients and co- workers cell phone numbers to make sure they can contact you Forward office line if there is no one at the office answering the phone Give me a Ring Document client calls electronic file notes are file Follow up email to document substance of communication prevents later misunderstandings
Communication with Clients Rule of Professional Conduct 1.4, requires the attorney to 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.
The duty to supervise staff does not stop just because the staff is working remotely Rule of Professional Conduct 5.3 provides duties to ensure that the attorney make[s] reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer s conduct is compatible with the professional obligations of the lawyer. Duty to Supervise Staff Staff (and attorneys) are naturally distracted by the challenges of remote working and the attendant childcare and other personal issues the shelter in place orders have created.
LAWYER WITH DIRECT SUPERVISORY AUTHORITY OVER ANOTHER LAWYER SHALL MAKE REASONABLE EFFORTS TO ENSURE THAT THE OTHER LAWYER COMPLIES WITH THE RULES. RULE 5.1 AN ATTORNEY HAS THE SAME DUTY TO SUPERVISE ASSOCIATES Supervision & Delegation
COVID-19 did not change the non-delegable duty the attorney has to maintain the client trust account. Rule of Professional Conduct 1.15 Make sure the attorney has access to all login information for all accounts to pay necessary bills, even if the bookkeeper is working remotely Supervision & Delegation
The Los Angeles County Superior Courts Guidelines for Civility in Litigation provide that [a] lawyer should advise clients against the strategy of granting no time extensions or continuances for the sake of appearing though. Civility in These Uncertain Times Duty to Supervise Staff Los Angeles County Bar Association s Professional Responsibility and Ethics Committee urged: Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations.
Plaintiff argues that it will suffer an irreparable injury if this Court does not hold a hearing this week and immediate[ly] put a stop to the infringing unicorns and knock-off elves. . . . If ever there s a time when emergency motions should be limited to genuine emergencies, it is now. . . . The filing calls to mind the sage words of Elihu Root: About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop. See Hills v. Norfolk and Western Railway Co., 814 F.2d 1192, 1202 (7th Cir. 1987). . . . The world is facing a real emergency. Plaintiff is not. The Unicorn Order
Cooperate in moving your cases Collaborate with opposing counsel in scheduling wherever possible Be considerate of harried court staff who are as befuddled as you are on where we are headed Commiserate with clients facing the same challenges you are Play Nice
Conclusion Stay safe and be well! Erin Joyce, Esq. erin@erinjoycelaw.com
