The fear of contracting COVID-19 from a mandatory in-person court appearance may be grounds for seeking withdrawal from representation, according to one state ethics committee. The committee opined that an attorney representing a client in an immigration court may withdraw with permission if a court has no COVID-19 safety protocols in place and an in-person appearance is required. ABA Litigation Section leaders agree that the opinion strikes an appropriate balance between attorney safety and client representation. But they caution that the outcome may have been different in states that follow the ABA Model Rules of Professional Conduct.
Court Permission Is Required
In Ethics Opinion 1203, the New York State Bar Association Committee on Professional Ethics responded to an attorney’s inquiry about whether withdrawal from representation was ethical when the attorney was mandated to appear for an in-person conference during the COVID-19 pandemic, and where the court had no safety protocols to limit the spread of the coronavirus. The committee opined that the fear of contracting COVID-19 may have a detrimental impact on client representation, and that under New York Rules of Professional Conduct 1.16(d), 1.16(c)(1), and 1.16(c)(10), counsel is permitted to withdraw. The committee reasoned that fear of contracting COVID-19 could undermine counsel’s effectiveness, facilitating a premature—and less favorable—disposition by foregoing additional appearances, motions, conferences, and witness testimony in an effort to conclude a hearing.
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