Article byPosted Featured AuthorJune 2020
The global Coronavirus pandemic has required a certain level of flexibility in all professional spheres. Doctors are treating patients remotely. Teachers are providing instruction online. And restauranteurs have adapted to serving their clientele through delivery and curbside pick-up options. As with all widespread societal change, the legal industry is not immune — having been impacted as much, if not more, than most other professions. For example, old-school judges (including Supreme Court Justices, who are notoriously adverse to technology in the courtroom) have used audio and video technology to keep the wheels of justice turning. Attorneys have taken their operations remote, working from their homes, backyards, and public parks. And clients have increasingly novel demands, borne of the uncertainty that an indefinite quarantine brings. From where I’m sitting, legal professionals have done an outstanding job meeting those demands, owing in part to the flexibility that modern technology provides.
But there’s at least one aspect to the practice of law that is not subject to flexibility. Attorneys have an ongoing obligation to satisfy their ethical responsibilities — even during times of crisis. This article addresses several potential ethical pitfalls that may arise as a result of our “new normal,” or the artificial environment created by working remotely. This is not a comprehensive discussion of everything that could go wrong; rather, it merely serves to remind practitioners that even a global pandemic does not suspend our ethical obligations to the courts and our clients.
The Mississippi Rules of Professional Conduct identify several threshold obligations that attorneys owe to their clients, including competence (Rule 1.1), diligence (Rule 1.3), communication (Rule 1.4), and confidentiality (Rule 1.6).
Under Rule 1.1, lawyers are required to act with “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In emergency cases, lawyers may be tempted to provide advice on areas of law outside their expertise, but this temptation should generally be avoided unless the lawyer has the time and capacity to learn and become reasonably conversant in the requested subject matter. Otherwise, the safest course of action may be referral to a trusted colleague.
Even a global pandemic does not suspend our ethical obligations to the courts and our clients.
Under Rule 1.3, lawyers are also expected to act “with reasonable diligence and promptness in representing [their] client[s].” Acting diligently means (among other things) that all matters should be handled expeditiously; that lawyers should control their workloads so as not to become overwhelmed; and that lawyers should clearly advise their clients when the attorney-client relationship is terminated. In the current climate, attorneys should also have a plan for their practices to be properly supported in the event of death or long-term disability, and this advice applies with particular force to solo practitioners.
Along the same lines, Rule 1.4 requires careful and consistent communication with clients to avoid the loss of confidence that generally springs from an attorney’s radio silence. This includes, but is not limited to, communicating with the client about the status of the matter, requests for information, and any decision or circumstance requiring the client’s informed consent. If a prompt response to client communication is not feasible, the lawyer should at least acknowledge receipt of the communication and specify when a response can be expected.
Under Rule 1.6, attorneys must maintain the confidentiality of client information except under limited circumstances. This Rule is implicated by any situation that may compromise client data, including the cybersecurity concerns that arise in remote working environments. Attorneys should therefore take care that their means of communication (i.e., Zoom, Skype, or Slack) is reasonably immune to data breaches. Attorneys working remotely should also take care that housemates (i.e., spouses, children, or roommates) cannot access client information or overhear telephone or video conferences that include confidential information.
The Mississippi Rules of Professional Conduct also identify several issues related to conflicts of interest that are particularly important in emergency circumstances. Rules 1.7, 1.8, and 1.9 require lawyers to continue checking for conflicts, even when advising family and friends on urgent matters. Rule 1.10, on imputed conflicts, suggests that teams of attorneys working remotely maintain a consistent line of communication, as the conflicts of one lawyer are imputed to the entire firm. And Rule 1.16, on declining or terminating representation, requires that an attorney not represent clients if her “physical or mental condition materially impairs” her ability to do so. As much as attorneys hate to turn away representation, any illness (including COVID-19) that severely impairs physical health and mental acumen may preclude an attorney from accepting new matters in the short term.
Again, this is not an exhaustive list of an attorney’s ethical obligations. To remain fully abreast, attorneys should periodically review the Mississippi Rules of Professional Conduct. But it is particularly important for now to be aware that changing norms implicate both practical and ethical considerations.