COVID-19 Fears May Be Grounds for Withdrawal

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.

The committee cautioned, however, that permission from the tribunal is required and that counsel must take reasonable steps to ensure that the client is not prejudiced after withdrawal. “The effect of the New York ethics opinion is that the appropriate balance between attorney safety and client representation is left at least in part to the discretion of the courts. We have to hope and trust that the courts will get it right,” offers Laura K. Lin, San Francisco, CA, cochair of the Litigation Section’s Ethics & Professionalism Committee.

“It would be dangerous to have a hard and fast rule permitting withdrawal without permission of the tribunal,” and thus, courts should “consider the ways in which the lawyer’s concerns may affect representation before permitting withdrawal,” explains Tiffany Rowe, Washington, DC, cochair of the Section’s Professional Liability Litigation Committee. A tribunal should analyze “questions surrounding transmission of the illness, the severity of the illness if contracted” prior to allowing counsel to withdraw from a case because of safety reasons, Rowe continued.

Context for Fear of Infection Is Critical

Because the attorney is appearing in immigration court, Rowe observes, the concerns “may be heightened if his client is detained by U.S. Immigration and Customs Enforcement or U.S. Border and Customs Protection, where the inability to socially distance and lack of resources to provide all detainees with face coverings or to provide other protections” differentiates fears of contracting COVID-19 from other illnesses. Indeed, the committee observed that the fear of contracting the coronavirus could lead counsel to forego additional appearances, motions, and conferences, and to prematurely conclude a hearing without calling necessary witnesses or cross-examining government witnesses. Flexibility in considering the facts and circumstances surrounding the request to withdraw is needed, Lin agrees.

The legal profession’s embrace of technology during the pandemic provides additional solutions short of withdrawal, notes Lin. “We’ve seen a monumental leap forward in the legal profession’s comfort with remote proceedings over the past six months,” Lin acknowledges. This leap forward, opines Lin, will allow the profession to become more inclusive not just related to COVID-19, “but has longer-term inclusivity benefits for a broad range of attorneys for whom travel or in-person proceedings may be difficult,” such as individuals with disabilities or lawyers with familial obligations. If the parties are not prejudiced, another option that acknowledges the safety concerns surrounding COVID-19 without withdrawal, is to delay or stay the proceedings, Lin notes.

Leaders Caution that Model Rules Provide Less Protection Than New York’s Rules

Leaders warn practitioners to pay close attention to the wording of the ethics rules in their jurisdiction. Both the ABA Model Rule 1.16 and NYRPC 1.16 provide that an attorney “shall” withdraw when the lawyer’s condition “materially impairs the lawyer’s ability to represent the client,” Lin notes. But New York’s rules add section 1.16(c)(9), which permits withdrawal if the lawyer’s mental or physical condition “renders it difficult to carry out the representation effectively.” The Model Rules of Professional Conduct do not have this additional language, which make the New York rule more flexible.

“The New York opinion is protecting lawyers in advising that a lawyer need not determine that her representation would necessarily be ‘materially impaired’ by fear of COVID-19 in order to seek permission to withdraw,” muses Lin. The New York opinion is simultaneously “protecting clients by directing lawyers to fully consider whether their fear of infection could be detrimental to the representation,” she continues. She cautions that withdrawal may not be permitted in states that have adopted the ABA Model rule if the attorney cannot demonstrate that fear of contracting COVID-19 would “materially impair” representation.