When COVID-19 Meets the Litigator’s Office

COVID-19, an enduring public health challenge that stretches across the world, raises interesting legal ethics issues for lawyers. Ethical considerations while practicing law during the COVID-19 epidemic have been written about at length during the past few months, but one question has received relatively little attention: What ethical issues arise when attorneys or their clients contract COVID-19?

With more than 6.9 million reported COVID-19 cases in the United States (as of Sept. 22, 2020), the question is not trivial. The likelihood that attorneys and their clients will contract the disease is high. This post looks at the ethical issues that arise in both scenarios.

When the client contracts COVID-19

Several ethical rules are implicated in the scenario in which a client contracts COVID-19. The first is the lawyer’s duty to communicate information to the client, and the second is the duty to safeguard client confidential information.

In the U.S. at present, there is no mandatory, national contact tracing system in place. Instead, local public health departments determine whether to implement COVID-19 contact tracing processes as well as the circumstances under which contact tracing will be attempted. As a result, lawyers may or may not be under a legal obligation to cooperate with contact tracers in their local jurisdiction.

To the extent that a lawyer is under a legal obligation to report contacts with persons who have contracted COVID-19, several ethical rules are implicated.

The first is Rule 1.4(b) of the ABA Model Rules of Professional Conduct, which states that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

The second is Rule 1.6, which provides that a lawyer shall not reveal confidential information relating to the representation of a client unless the client gives informed consent or unless one of several exceptions applies

An attorney’s disclosure of the fact that a particular person is a client or that that person visited the attorney’s office can violate ethical obligations to maintain client confidentiality.

In a recent article, ethics counsel with the State Bar of Wisconsin explained that lawyers must take the time to understand how contact tracing and other public health reporting laws operate in their jurisdiction in order to fulfill their ethical duties of communication and confidentiality. Before conducting in-person meetings with clients, an attorney should inform the client about contact tracing and any other legal obligations concerning communicable diseases, the article’s author advised. “Clients need this information to make an informed decision about meeting with the lawyer in person or remotely, if possible.”

There are some circumstances in which an attorney may ethically reveal the identity of a client without the client’s permission.

Rule 1.6 permits attorneys to disclose client confidential information in limited circumstances, such as when necessary “to prevent reasonably likely death or substantial bodily harm.” Because it’s debatable whether COVID-19 is serious enough to fall within the scope of this exception, the prudent course of action would most likely be to seek client approval prior to divulging their names to public health authorities.

It might also be necessary for lawyers to maintain a list of visitors to the law office to comply with local contract tracing obligations, if any.

To the extent that a client’s COVID-19 illness makes it difficult to communicate with the client, due to quarantine or hospitalization, an attorney’s obligation under Rule 1.4 to keep the client reasonably informed about the case remains. Attorneys are not relieved of their obligation to communicate when clients become ill. If anything, they are obliged to take whatever steps are reasonably necessary to keep the client informed and in charge of the representation.

When the lawyer contracts COVID-19

Rule 1.4’s duty of communication is also relevant in the situation in which an attorney contracts a case of COVID-19. Although mild cases of COVID-19 likely would not likely impair an attorney’s ability to zealously represent the client, and thus need not be communicated to the client, more serious COVID-19 cases may in fact create an ethical duty to notify the client.

COVID-19, just as with any other serious disability or illness, also raises the possibility that an attorney may not be able to diligently represent the client, as required by ABA Model Rule 1.3.

In Cabrera v. Collazo, 979 N.Y.S.2d 326 (2014), the New York Supreme Court put lawyers on notice that failing to disclose an illness affecting the client’s interests could amount to malpractice. In Cabrera, an attorney contracted cancer and died prior to the expiration of a statute of limitations in a wrongful death case he was handling. When the limitations period expired, without notice to the client, the client sued a deceased attorney’s estate for malpractice. The court held that, because it was foreseeable that the attorney’s illness and death would affect the client’s interests, the attorney had a duty to inform the client of his condition.

Serious cases of COVID-19 raise the same issues present in any case in which the attorney is unable, for whatever reason, to zealously and diligently represent the client. Attorneys at large firms have the luxury of passing case matters to capable partners and associates.

Solos and small firm attorneys face more difficult decisions. For them, contracting a case of COVID-19 so serious that they are unable to continue representing clients should be considered similar to a retirement or winding-down of a law practice, albeit temporarily. Procedures for assigning cases to new counsel — and for declining new cases until the attorney is well enough to handle them —should be put in place well in advance of a COVID-19 diagnosis.

In Michigan, Ethics Opinion RI-374 encourages attorneys to adopt a succession plan in the event they become unavailable to serve clients due to disability, death, or any other circumstance. The opinion notes that an attorney’s unavailability due to disability or serious illness implicates several ethical obligations:

  • the obligation to provide competent representation;
  • the obligation to provide diligent representation;
  • the obligation to protect client confidential information; and
  • the obligation to withdraw from a representation when a physical or mental condition materially impairs the ability of the attorney to represent the client.

Per the opinion:

Lawyers who lack a succession plan would ultimately fail their clients and possibly be in violation of various ethical duties under [Michigan Rules of Professional Conduct]. The consequences to clients should be taken very seriously, as clients are often entirely dependent on the lawyer to handle their legal matter. Deadlines, hearings, discovery matters, trust accounting, etc., require timely attention should a lawyer become unavailable.

The American Bar Association’s 5 Musts for an Effective Succession Plan is a good place to start for lawyers just beginning to work through these issues.

Being prepared is the key

As in most cases, the attorneys who anticipate and prepare for a possible COVID-19 diagnosis, either for themselves or their clients, will be in the best position to continue to give clients the high level of care attorneys are ethically obligated to provide. This means discussing COVID-19’s possible impact on the case matter with all clients, as well as securing any necessary approvals for limited disclosure of client confidential information to public health authorities. It also means putting in place procedures for when client matters will be assigned to new counsel in the event a COVID-19 diagnosis makes it impossible for the attorney to continue to represent the client.