Managing Mental Health and Ethics: in the Wake of the COVID-19 Crisis

It is no secret that attorneys struggle with mental health and substance abuse issues. A 2016 study by the American Bar Association Commission on Lawyer Assistance Programs, conducted in collaboration with the Hazelden Betty Ford Foundation, concluded that attorneys experienced significant mental health distress and problematic drinking consistent with alcohol use disorders at a higher rate than other professionals. See Patrick R. Krill, Ryan Johnson & Linda Albert The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, J. Addiction Med., Jan./Feb. 2016. The susceptibility of lawyers to these mental health and substance abuse issues may be exacerbated by the stress and anxiety in dealing with the pandemic and the disruption that working remotely causes.

The Difficulties of Working from Home

For some attorneys, working from home feels isolating and lonely. For others, remote work means managing child care and online learning on top of the normal workload and billable requirements. Those who already struggle with mental health issues, and even those who do not, may feel even more stressed out under these conditions. It is easy for lawyers who are feeling stressed, overwhelmed, or depressed to make mistakes, which can lead to a rise in malpractice claims. But there are things attorneys and firms can do to mitigate these risks.

Especially in the crisis, it’s important that attorneys look for warning signs in others who may be struggling. Without being in the office, it can be difficult to check in on one another. Attorneys are no longer down the hall from their coworkers or able to have a conversation while grabbing coffee in the break room. State bars have recommended a variety of methods for coping with attorneys being physically distant from one another, instead of in the same office. Many state bars have encouraged attorneys and law firms to be proactive in managing attorney well-being and ensuring that attorneys stay on top of their professional responsibilities, even while working remotely.

Bar associations have also reminded law firm management that it is important to allow for some flexibility for people who are struggling to adjust to the new legal environment and to be alert to warning signs. See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 482 (2018) (Ethical Obligations Related to Disasters). For example, when an attorney falls behind on deadlines or misses scheduled meetings, it can be a red flag that he or she is suffering from depression, fatigue, or even substance abuse. Equally troubling can be an attorney who is not taking any breaks from the workday at all. Working from home can mean that the lines between work and personal time get blurred.

Given the susceptibility of attorneys to stress, anxiety, and depression, managing the COVID-19 crisis also means managing attorneys’ personal well-being. Law firm leaders have had to acknowledge that, for some attorneys, working from home means maintaining a more flexible schedule. Other attorneys require reminders of the importance of balancing work with home life, as well as self-care. It is also important not to let the lines of communications slip. For those who are struggling with mental health issues, it can make a difference to know that they are not alone. Everyone is facing some degree of stress and upheaval as a result of the pandemic, and there are resources available through local and state bars to help attorneys cope.

Working from home also means working with a new set of distractions. Family members often are now only a room away. Attorneys who are also parents or who care for children may now be responsible for getting kids set up for online classes each day. It can seem like there is no break between one set of responsibilities and the next. In addition to the strain these new challenges present to an attorney’s mental health, the disruptions can lead to scheduling errors and missed deadlines.

While many courts shuttered in March 2020, they soon reopened and are conducting hearings, and even trials, electronically or telephonically. Although courts have advised that they will be flexible to ensure the safety and health of the community, attorneys are not automatically excused from complying with court rules, even if an attorney is suffering from symptoms of COVID-19.

In July 2020, a Michigan attorney received an indefinite interim suspension for failing to appear at a disciplinary hearing. Before the hearing, the attorney had contacted the Michigan Attorney Discipline Board to report that he was suffering from health problems associated with COVID-19. In response, the board gave the attorney information to attend the hearing via telephone, instead of a video call. Per Michigan court rules, attorneys must attend hearings unless they are excused by the panel. In response to the COVID-19 pandemic, the Michigan Attorney Discipline Board issued an updated order in May that ordered the panels to consider “reasonable requests for accommodation” made by attorneys, in an effort to protect the health of the community. However, the order also required the panels to balance public health concerns with the directive from the Michigan Supreme Court to provide essential functions and to continue to provide justice in a timely manner.

It follows that, in some courts, even if an attorney is suffering from symptoms of COVID-19, he or she is not automatically excused from the responsibility of complying with deadlines or attending virtual or telephonic court hearings. Part of managing the practice of law in a pandemic includes creating a plan for handling cases and deadlines in the event that an attorney does become ill or incapacitated. Having a succession plan for such circumstances is even more necessary for solo practitioners and small law firms. Solo practitioners and small law firms should also be wary of accepting more cases than they can handle with limited staff if an attorney does become sick or even hospitalized. Now more than ever, attorneys must consider and plan for the worst-case scenario.

Supervisory Attorneys

Another aspect of handling the pandemic is how attorneys have adapted in supervising younger associates and non-lawyers while working remotely. Supervisory attorneys have had to change their strategies to ensure that they comply with their duties under ABA Model Rules 5.1 and 5.3. Rule 5.1 requires supervisory attorneys to make reasonable efforts to ensure that all lawyers in a firm conform to the professional obligation. Rule 5.3 requires attorneys with supervisory authority over non-lawyers to make reasonable efforts to ensure that the non-lawyers’ conduct is compatible with the professional obligations of the attorney. The question has become, then: How does one manage and supervise others when everyone is working in a different place?

Law firm leaders have had to become more proactive in keeping regular contact with the lawyers and non-lawyers they supervise. In addition, leaders have had to change, or create completely new, plans to avoid potential ethics violations. Younger associates are no longer able to walk down the hall to discuss a legal issue or pose a question to a supervising lawyer. Yet, attorneys in supervisory roles are still responsible for ensuring that others are abiding by the ethical rules. It can be easy for some mistakes, which may have been caught while reviewing work together at the office, to slip through the cracks while working remotely.

In April 2020, the Virginia State Bar, like other state bars, issued guidance that urged attorneys to schedule regular check-in calls with colleagues and staff to monitor compliance with professional responsibilities. While regular check-ins are important for ensuring that attorneys are staying on top of their work, there is also a mental health component. Weekly calls between associates and partners can help the associates feel that they are not operating as a silo, cut off from the resources of the firm. It also allows the lines of communication to stay open. For a first- or second-year associate or an attorney who had just joined the firm at the start of or during the pandemic, regular communication can help ensure that he or she is adjusting to life at the firm. And if someone is struggling mentally or emotionally, it might be easier to figure it out on a telephone call or a Zoom conference, rather than by email.

Confidentiality

Attorneys have also had to adjust how to think about client confidentiality during the COVID-19 crisis. Under ABA Model Rule 1.6, attorneys must not reveal information related to the representation of a client, unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation, or disclosure is otherwise permitted by the rule. Attorneys must also make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information related to the representation of a client. How to keep client confidences in the time of COVID-19 means considering how those confidences might be compromised while working from new locations.

Court hearings and depositions are now being held over platforms like Zoom and Webex. Attorneys are using personal laptops and home Wi-Fi connections to communicate with clients and to access client files. It follows that the attorney who is working remotely must also consider whether he or she is protecting client data from cybersecurity risks, while using new systems and technology outside of the office.

In addition to an attorney’s obligations under Rule 1.6(c), under ABA Model Rule 1.1, an attorney must keep abreast of changes in the law, including the benefits and risks associated with relevant technology. Attorneys must understand the risks of communicating client confidential information while working remotely. Attorneys must also be competent at using the applicable technology. Using unprotected Wi-Fi connections, for example, runs the risk of other people on the same connection being able to access client data. In addition, using applications like Zoom to communicate with clients means that third parties may be able to listen in on the attorney-client conversations. Law firms must also be wary of attorney use of personal computers, which may not have the same cybersecurity protections as computers used at the office, making the remote attorneys more susceptible to hackers, viruses, and malware. As a result, many state bars have issued opinions offering guidance and addressing cybersecurity risks and confidentiality obligations for attorneys working from home.

On March 12, 2020, the Technology and the Legal Profession Committee of the New York State Bar Association issued guidelines that addressed cybersecurity competence required by practitioners. See Tech. & the Legal Profession Comm. of the N.Y. State Bar Ass’n, Cybersecurity Alert: Tips for Working Securely While Working Remotely (Mar. 12, 2020). The New York State Bar urged attorneys and law firms to have a crisis communication plan in place and to consider the options for risk management. The tips also advised law firms to obtain a virtual private network (VPN) and to make sure that every attorney and staff member knows how to use it. In addition to these and other tips, the New York State Bar Association also urged attorneys and law firms to consider the challenges of practicing law amid the COVID-19 outbreak as a good time to review or create a business continuity plan and to consider whether the firm has appropriate cybersecurity insurance.

Similarly, on April 10, 2020, the Pennsylvania Bar Association’s Committee on Legal Ethics and Professional Responsibility issued Formal Opinion 2020-300 on attorneys’ ethical obligations while working remotely. See Ethical Obligations for Lawyers Working Remotely, Pa. Bar Ass’n Comm. on Legal Ethics & Prof’l Responsibility, Formal Opinion 2020-300 (Apr. 10, 2020). The Pennsylvania opinion affirmed and adopted the conclusions of the ABA Standing Committee on Ethics and Professional Responsibility in ABA Formal Opinion 477R (2017). The Pennsylvania opinion also adopted the analysis of ABA Formal Opinion 477R concerning an attorney’s duty of confidentiality, which included factors to guide attorneys in making a “reasonable efforts” determination to prevent inadvertent or unauthorized disclosure of and unauthorized access to information relating to the representation of a client. Among other recommendations for maintaining client confidentiality while working remotely, the Pennsylvania opinion encouraged attorneys to avoid using public internet; to use VPNs and strong passwords; to backup any data stored remotely; and to follow Microsoft’s published guidelines for a secure home office, which include using a firewall and anti-malware software.

In addition to managing cybersecurity risks, many state ethics committees have also advised attorneys to be wary of the new challenges to maintaining client confidences while working from new surroundings. Some state bars, such as the bars of Virginia and Pennsylvania, have issued guidance reminding attorneys to avoid communicating with clients around smart devices, such as Alexa and Google Assistant, which can listen to and record conversations.

It can be easy for attorneys at home to overlook confidentiality obligations under Rule 1.6 when they are multitasking between home obligations and work. Although it’s not always possible, attorneys are advised to maintain private office space, where they can have private conversations with clients—away from other members of their household. Attorneys must also ensure that family members and visitors to the home do not have access to client information or files, either stored electronically or physically kept in the home. For example, a family member who borrows an attorney’s laptop can access any client data stored on that computer if it does not have any security measures in place. Although it might be unlikely that a family member will riffle through client files, the rules still require that the appropriate precautions are taken to keep client information securely stored so that it is not accessible to anyone other than the attorney.

A novel ethical consideration that has come with the pandemic has been what an attorney’s obligations are if he or she suspects that a client with whom the attorney has had contact has COVID-19. The State Bar of Wisconsin addressed the duty of an attorney to protect client confidences when the attorney suspects that a client who had recently come to the attorney’s office has the COVID-19 virus. Like ABA Model Rule 1.6, Wisconsin Supreme Court Rule 20:1.6(c) provides that a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably likely death or substantial bodily harm. The Wisconsin Bar opined that a lawyer must balance the individual circumstances and advised that, under such circumstances, “[l]awyers would be able to notify appropriate parties of possible contact with the infected person even though it would result in possibly disclosing the name of the client. A lawyer would also be able to notify the local health department to allow for contact tracing. The best strategy is to seek approval from the infected client before making a unilateral decision to disclose that information.”

Similarly, the North Carolina State Bar addressed the scenario of disclosing client confidential information, such as a client’s name and contact information, if an attorney is questioned by public health or medical officials about the attorney’s recent contacts because of the attorney’s exposure to COVID-19. The North Carolina State Bar advised that an attorney who is exposed to COVID-19 may disclose confidential client information to medical officials to the extent the attorney reasonably believes necessary to prevent the spread of the virus, pursuant to North Carolina Rule of Professional Conduct 1.6(b)(3).

Work Location Regulations

The pandemic also means that attorneys must now consider whether, by working remotely, they are engaging in the unauthorized practice of law. Some attorneys may reside in a different state than where they practice, such as lawyers who work at law firms in New York City but reside in New Jersey or Connecticut. Many attorneys have also decided to work remotely from vacation homes, rather than areas that have become hot spots for the virus. While a change of scenery may help with an attorney’s mental health in the pandemic, attorneys must also consider whether they are abiding by the rules that govern the unauthorized practice of law in that jurisdiction.

Under ABA Model Rule 5.5, a lawyer must not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Of course, there are some exceptions. Rule 5.5(c) states that a lawyer may provide legal services in a jurisdiction on a temporary basis in some circumstances. However, how each jurisdiction views “temporary basis” varies, as well as the activities that constitute the unauthorized practice of law in that jurisdiction. In light of the pandemic and the sudden need for attorneys to be able to work remotely, some jurisdictions are reevaluating what they consider to be the unauthorized practice of law, on both a temporary and a permanent basis.

On August 17, 2020, the Florida Bar’s Standing Committee on the Unlicensed Practice of Law issued Proposed Advisory Opinion FAO 2019-4. The request for the formal advisory opinion was brought by a New Jersey attorney, who asked whether it would be the unlicensed practice of law for him, while domiciled in Florida and having no place of business or office in Florida, to work remotely from his Florida home solely on matters that concern federal intellectual property rights and not Florida law. In the proposed opinion, the committee found that, in light of the current COVID-19 pandemic, the attorney’s written testimony stating that working from home is the way of the future of the practice of law to be persuasive. The committee opined that it would not be an unauthorized practice of law for the New Jersey lawyer, domiciled in Florida, to work remotely from his Florida home solely on matters that concern federal intellectual property rights under those circumstances. It remains to be seen whether the Supreme Court of Florida will approve, modify, or disapprove the proposed opinion.

In March 2020, the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law issued Opinion 24-20, Teleworking from Home and the COVID-19 Pandemic, offering guidance to attorneys who are now working from home in the District of Columbia, despite not being admitted to the District of Columbia Bar. The committee concluded that an attorney who is not a member of the District of Columbia Bar may practice law from the attorney’s residence in the District of Columbia under the “incidental and temporary practice” exception of Rule 49(c)(13) of the Rules of the District of Columbia Court of Appeals, if the attorney (1) is practicing from home due to the COVID-19 pandemic, (2) maintains a law office in a jurisdiction where the attorney is admitted to practice, (3) avoids using a District of Columbia address in any business document or otherwise indicating that he or she is authorized to practice law in the District of Columbia, and (4) does not regularly conduct in-person meetings with clients or third parties in the District of Columbia.

Things seem to look better today, but this pandemic isn’t over yet and we don’t know when the next one will come. The COVID-19 pandemic also brought about unprecedented changes. Regardless of how life may look going forward, attorneys and law firms must consider the ethical issues that have been raised during the pandemic and the lessons that can be learned from them. Similarly, state bar ethics committees must also now consider the “new normal” and whether any of the temporary changes made during the COVID-19 pandemic should be made permanent.