COVID-19 Fatigue? Don’t Let Your Ethics Guard Down

COVID-19 fatigue is real. The typical work day is long, the work is hard, and the end is nowhere in sight across much of the country. After months of “working from home,” lawyers can be forgiven if they’re weary of being cooped up, weary of being careful, weary of social distancing regimens.

Worse yet, the nice people who clean law offices don’t make house calls. The “home office” can be a bit noisy for complete concentration, and it often smells like breakfast. Many lawyers are more than a little chagrined that their professional lives have dissolved into an unrelenting chain of phone calls, Zoom meetings, and email messages—with no end in sight.

Earlier this summer the end was in sight. Now it isn’t.

Courts that had been “re-opening” are “re-closing.” The start of the new school year, always a blessing for working parents but this year more so than ever, has crept off into the future leaving no forwarding address.

But now is not the time to give in or to cut corners professionally. No, now is the time for a quick run-through of a lawyer’s ethical obligations to clients during these challenging times.

Competence

Lawyers must be competent, which means they must possess both substantive knowledge of the law and technological knowledge of the digital tools used to deliver legal services in today’s marketplace. According to Rule 1.1 of the ABA Model Rules of Professional Conduct, “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

During the COVID-19 pandemic, this ethical obligation requires attorneys to:

• Be aware of local laws permitting the use of remote signatures, remote notarization, and remote testimony in order to continue to serve clients.
• Refrain from giving advice or legal assistance in matters for which he or she lacks skill or training required, except in the case of an emergency where a referral would be impractical.
• Stay current with substantive law (e.g., all practice areas affected by COVID-19 pandemic).
• Stay current with revised procedures in all relevant courts and government offices.
• Stay current on orders, recommendations, and advice of federal and local public health authorities.
• Monitor state and local bar associations for guidance on local best practices and state-specific ethical obligations.
• Develop technological competence necessary to ethically and effectively deliver legal services.

Diligence

ABA Model Rule 1.3 states that a lawyer “shall act with reasonable diligence and promptness in representing a client.”

During the COVID-19 pandemic, this ethical obligation requires attorneys to:

• Put clients’ interests ahead of personal issues (scheduling, travel issues, lack of child care, lack of access to technology) that might impair the attorney’s ability to competently represent the client.
• Regularly obtain office mail, either by gaining access to the firm’s physical office or having mail forwarded to residence.
• Take whatever measures are necessary to gain access to client files and other client data while working outside the firm’s customary office.
• Maintain up-to-date calendar entries and monitor statutes of limitation, which may (or may not) have been revised by emergency court orders.

Communications

ABA Model Rule 1.4 creates numerous obligations regarding communications, largely revolving around the idea that the client must be kept informed and in charge of the subject of the representation at all times. Chief among these duties are keeping the client reasonably informed about the case and promptly complying with requests for information.

During the COVID-19 pandemic, this ethical obligation requires attorneys to:

• Ensure that clients have the attorney’s best contact information (e.g., mail, e-mail, telephone, text) and clear instructions on how communications will be handled.
• Inform clients of all upcoming court appearances, deadlines, or any other matter that requires the client’s attention or participation.
• Inform clients of the law firm’s “succession plan” in case the attorney becomes ill or is otherwise unable to handle a client’s matter.
• Ask the client whether his or her health condition or health concerns make it unlikely for the client to appear in court, meet in person, sign documents, attend closings, or participate in pretrial activities.

Confidentiality

Among the confidentiality obligations created by ABA Model Rule 1.6 is the requirement that the lawyer “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

During the COVID-19 pandemic, this ethical obligation requires attorneys to:

• Ensure all digital devices used for client matters are password protected so that third parties will not have access to confidential information.
• Set aside a private area of the home for client matters and take steps to ensure that others present cannot listen to conversations held there.
• Avoid using public Wi-Fi networks, deploy a VPN (virtual private network) at home, and use strong passwords and multifactor authentication to protect confidential client communications and data.

Supervision

ABA Model Rules 5.1 and 5.3 work together to make law firm management responsible for the conduct of everyone in the firm. Rule 5.1 requires managing attorneys to “make reasonable efforts” and put in place “measures” designed to ensure that attorneys in the firm comply with their ethical obligations. Rule 5.3 makes firm managers responsible for any ethical transgressions committed by nonlawyer support personnel.

During the COVID-19 pandemic, this ethical obligation requires supervising attorneys to:

• Ensure that all firm personnel have an appropriate remote work environment and access to technology capable of protecting client confidential information.
• Train all lawyers and nonlawyer personnel in the effective use of remote networking technologies.
• Distribute and have in place a means to enforce the firm’s COVID-19 preparedness plan, if one exists.
• Maintain a database of contact information for all office personnel.
• Be mindful of the increased opportunity for conflicts of interest (Model Rules 1.7, 1.8) to arise when the firm’s lawyers are distributed in remote home office locations; have in place a process for identifying and preventing inadvertent conflicts.

Additional Considerations

Attorneys shouldn’t lose sight of their professional obligation of civility toward other parties and their personal obligation to take care of themselves. The COVID-19 pandemic shouldn’t be an excuse to mistreat others; in fact, it’s a good reason to show others more patience and civility than usual. The Centers for Disease Control and Prevention’s What Workers and Employers Can Do to Manage Workplace Fatigue During COVID-19 is a good place to start for advice on personal wellness while working remotely. Most state bar associations have similar guidance on their websites.

Finally, it’s worth noting that the combination of stressed clients and hectic law practices yields fertile soil for malpractice claims. The legal profession’s ethical rules do not contain exceptions for pandemics. According to Mark Bassingthwaighte, a risk manager for legal malpractice insurer ALPS Corp., legal malpractice claims exceeding $10,000 rose more 35 percent in the wake of the 2008 recession. How COVID-19 and a Recession Could Impact Malpractice Claims, Virginia Lawyer (April 2020).