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April 08, 2020 Articles

Five Pointers for Practicing in a Pandemic

ABA Formal Opinion 482 provides guidance on legal ethics in the time of coronavirus.

By Margaret Monihan Toohey
As we practice social distancing, so too can we continue practicing law with an awareness of ethical obligations.

As we practice social distancing, so too can we continue practicing law with an awareness of ethical obligations.

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside our paywall and available to all readers.

ABA Formal Opinion 482, issued September 19, 2018, provides guidance on the rules of professional conduct as they apply to lawyers affected by “disasters.” While the opinion references natural disasters—hurricanes, floods, tornadoes, fires, etc.—the COVID-19 pandemic rivals any extreme weather event in its impact on legal practice. Courts across the country are effectively shuttered, at least with respect to most civil-litigation dockets. Law firms and clients worldwide contend with restrictions affecting every aspect of their day-to-day operations. Coronavirus-related challenges are ever-evolving, but the rules governing our ethics obligations have not changed. Indeed, now more than ever, lawyers must remain apprised of and abide by these rules. Following is a refresher on five obligations raised in Formal Opinion 482 and imperative to maintaining client service and trust in these unprecedented times. 

The Devil Is in the (Administrative) Details

Model Rule 1.15 (safekeeping property) requires lawyers to protect trust accounts, documents, and property the lawyer is holding for clients or third parties. These obligations remain in place even amid a once-in-a-century pandemic. As law firms transition to remote work and in some cases layoffs of lawyers and staff, firm leadership must develop adequate procedures to ensure administrative processes remain in compliance with the rules. For example, who will be tasked with handling Interest on Lawyer Trust Accounts (IOLTA), and how will remote work affect the firm’s ability (and duty) to ensure funds are not comingled? Similarly, lawyers must take reasonable steps to ensure access to funds that the lawyer is holding in trust. As recommended in Formal Opinion 482, all lawyers should consider “(i) providing for another trusted signatory on trust accounts in the event of the lawyer’s unexpected death, incapacity, or prolonged unavailability and (ii) depending on the circumstances and jurisdiction, designating a successor lawyer to wind up the lawyer’s practice.” Our clients rely on us to provide calm and assured counsel in challenging times, but meeting our ethical obligations also requires us to prepare for the worst.

Remote Practice and/or Relocation May Run Afoul of the Rules

Formal Opinion 482 contemplates two varieties of multijurisdictional practice in the wake of a disaster: (1) representation of clients by displaced lawyers in another jurisdiction (i.e., lawyer relocation) and (2) out-of-state lawyers providing representation to disaster victims. As coronavirus “hot spots” have emerged, some Americans (including, presumably, lawyers) have relocated to alternate residences, in many cases across state lines. Manhattanites have returned to childhood homes throughout the country and Bostonians have sought refuge in rural New Hampshire, Vermont, and Maine. As a preliminary matter, lawyers considering such travel must ensure that they are in compliance with any applicable “stay at home” orders, domestic travel restrictions, and quarantine orders. Temporarily relocated lawyers must then determine whether they can still serve clients in their home jurisdiction. In some states, even remote practice on behalf of home-state clients may run afoul of the rules. Although displaced lawyers may be able to rely on Model Rule 5.5(c) (allowing temporary multijurisdictional practice) to provide legal services to their clients, they should not assume that the rule will apply in a particular jurisdiction. Displaced lawyers should consider seeking counsel from qualified lawyers in their temporary jurisdiction to determine whether major-disaster provisions are in effect and whether any local rules or requirements may affect their ability to practice.

Similarly, out-of-state lawyers providing representation to disaster victims must also navigate rules regulating temporary multijurisdictional practice. Prisoners and Immigration and Customs Enforcement (ICE) detainees in facilities with coronavirus outbreaks, independent contractors desperate to access unemployment benefits, and healthcare workers anxious to execute wills and advance directives need our help more than ever. Lawyers eager to provide pro bono services to out-of-state clients should, like their displaced-lawyer counterparts, consider consulting with qualified local lawyers.

Advertise with Caution

As many practice areas grind to a halt, coronavirus-related legal challenges offer an attractive opportunity to provide necessary counsel while generating much-needed revenue. Lawyers with the purest intentions may want to offer legal services to persons affected by the virus. Compliance with lawyer advertising and solicitation rules, however, is still a must. A lawyer may not solicit disaster victims unless the lawyer complies with Model Rules 7.1, 7.2, and 7.3. For example, lawyers must avoid live telephone and other real-time visual or auditory person-to-person communications where the prospective client is subject to a direct personal encounter without time for reflection and a significant motive for the lawyer’s doing so is pecuniary gain. Lawyers should be aware that apart from ethical prohibitions, state statutory prohibitions may also apply. Lawyers may solicit pro bono clients in (socially distant) real time, because the lawyer’s motive does not involve pecuniary gain. Additionally, lawyers may communicate with prospective clients in “targeted” written or recorded electronic material in compliance with Rules 7.1 through 7.3. Lawyers should be mindful of any additional requirements for written or recorded electronic solicitations imposed by particular jurisdictions.

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Constructive Communication Is Key

Model Rule 1.4 requires lawyers to take reasonable steps to communicate with clients after a disaster. It goes without saying that all clients—from Fortune 50 executives to the elderly couple seeking estate-planning advice—may be experiencing anxiety about both their physical and financial well-being and the status of their legal matters. At a minimum, lawyers should assure their clients that they remain available to handle client matters as usual (albeit remotely). Lawyers should also, however, confer with their clients and think critically about how coronavirus-related circumstances may affect case strategy. For example, do revised financial projections or uncertainties make early mediation or a rejected settlement offer more attractive than previously thought? Do newfound childcare responsibilities render the client or key witnesses practically unable to provide necessary input at this time? Do health issues lend more urgency to a case, and require urgent execution of the will or witness declaration? Lawyers must also think critically about whether and how new circumstances impact their own ability to serve their clients. A lawyer unable to devote necessary attention to client matters due to exigent circumstances—a brewing mental-health crisis, a family member’s positive diagnosis—must promptly notify clients of their unavailability and provide an alternative that ensures seamless client service. See Rules 1.16(a)(1) (requiring withdrawal if representation will cause the lawyer to violate the rules of professional conduct), 1.16(a)(2) (requiring withdrawal if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client”), and 1.16(b)(7) (allowing termination of the representation when the lawyer has “other good cause for withdrawal”).

Secure Communication Is Equally Critical

In identifying how to communicate with clients under these circumstances, lawyers must

be mindful of their obligations to keep abreast of technology relevant to legal practice (Rule 1.1) and “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client” (Rule 1.6(c)). Unless otherwise agreed, “the show must go on,” and lawyers must embrace the technology (e.g., videoconferencing applications and remote court-reporting services) needed to do so. Lawyers should also recognize the limits of their technology expertise and retain consultants where necessary to ensure that client matters are handled appropriately and securely. A quick Google search on “Zoom-bombing” will reveal the disastrous consequences of cyber-attacks on unprotected videoconferences. Alexa and Google Home are similarly vulnerable to hackers, and lawyers must ensure that any discussion of confidential information takes place while these off-the-payroll personal assistants are unplugged or out of their range. Lawyers will need to wrestle with the costs and benefits of work-from-home technologies and remain aware of their risks. On a lower-tech note, lawyers must be aware of their physical surroundings, including avoiding confidential client or coworker conversations around family members and storing exhibit binders out of view.

As we practice social distancing, so too can we continue practicing law with an awareness of these ethical obligations. By doing so, we will uphold the integrity of our profession and ensure that lawyers remain a “good man in a storm”—or, in this case, a pandemic. 

Margaret Monihan Toohey is an attorney at Jones Day in Cleveland, Ohio.

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