In late 2019, Chinese health officials informed the World Health Organization (“WHO”) of a mysterious pneumonia outbreak.[1] Now, a quickly spreading virus known as Coronavirus (“COVID-19”) has infected people in multiple countries around the world. To date, almost half a million people have contracted the virus, and just over 22,000 cases have resulted in death worldwide.[2] Twenty-one states in the United States have issued stay-at-home orders, affecting more than 50% of the population.[3] Many practicing attorneys in the United States must continue their practice and contact with their clients remotely. One challenge attorneys may face, among many others during this unprecedented time, is the challenge to continue complying with rules of professional conduct and ethics. Here is a reminder of legal ethics to focus on during a time where contact with clients is limited, courts are pushing back hearings and deadlines, and attorneys must continue their work from home.

RULE 1.6

  • Model Rule of Professional Conduct (“MRPC”) 1.6 deals with confidentiality of information. In short, the rule requires lawyers to “not reveal information relating to the representation of a client unless the client gives informed consent….” Additionally, the rule requires lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” While the duty to keep client information confidential is familiar to attorneys, adhering to the duty in a work-from-home setting may be novel to most attorneys. No one wants to believe that a family member or a friend will leak information, or that a break-in could occur where confidential information is compromised, but attorneys must consider the possibilities for how confidentiality could be breached. While attorneys need not prevent every possible scenario, they must take reasonable efforts to prevent the disclosure of information relating to representation of a client. Many of the best practices are the same as those an attorney should use in a typical office setting and include locking the computer when it is not in use, storing paperwork and files securely when not using them, ensuring a secure internet connection, and avoiding the use of personal e-mail accounts when working with client information. But, consider how working from home makes implementation of some of those best practices more complicated. If an attorney is sharing a home computer with another person working from home or a student engaged in e-learning, the attorney should close any applications that could access clients’ confidential information and log out of remote access to one’s office files before allowing another to use the computer. If conducting conference calls from home, take precautions to discuss confidential client information in a secluded part of the home. Is the home internet connection secure? Attorneys have a duty to ensure that it is, particularly if not logged in to one’s office computer remotely when handling confidential client information.

RULES 1.4 & 1.3

  • MRPC 1.4 contains the duty of an attorney to “promptly inform the client of any decision or circumstance,” “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” “keep the client reasonably informed about the status of the matter,” “promptly comply with reasonable requests for information,” and “consult with the client about any relevant limitation on the lawyer’s conduct” under the rules. Ultimately, this rule is in place to ensure that attorneys are regularly communicating and updating clients in a timely manner. It is important to keep a client updated on the status of their cases. In the midst of COVID-19, this is especially important. If an attorney or a client is sick, that communication is both helpful and necessary to achieve the overall objective of the case. If the client owns a non-essential business that has closed because of a government order, timely communication may be pivotal for that client’s business to survive. If the client has recently had a significant change in their job, such as a recent lay-off or requirement to work seven consecutive days in a week, timely communication may help that client know his or her rights and how to move forward. If the client is an entity required to obtain permits for production, timely and regular communications can prepare them for how to obtain what they need and communicate with the necessary agencies despite these agencies limiting or closing their facilities. Each of these given scenarios are real occurrences taking place in a rapidly changing environment because of COVID-19 government responses. These scenarios are only a few examples of how and why timely and regular communications with a client is necessary during the current pandemic. Therefore, although person-to-person contact is currently limited due to the pandemic, attorneys can still maintain communications with most, if not all, clients via e-mail, phone, or old-fashioned snail mail. Just as contact is limited, the time to communicate is as well. Timely communications can have a significant effect on clients’ livelihoods and business health in the current environment.
  • In addition, MRPC 1.3 requires a lawyer to “act with diligence and promptness in representing a client.” Diligent representation of a client should include regular and timely updates and communication about the status of the client’s case. By regularly communicating with clients from the beginning and being open and honest about what is going on under new rules and regulations based on COVID-19, an attorney can ensure they are acting with reasonable diligence and promptness in their representation.

RULE 8.4

  • Lastly, under MRPC 8.4, dealing with attorney misconduct, the rule makes clear that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “engage in conduct that is prejudicial to the administration of justice.” Many in the legal profession have not worked from home on a regular basis before the pandemic required it. Therefore, law firms and other legal field employers have placed trust in their employees working from home. Attorneys should continue to adhere to honest timekeeping practices, especially if feeling pressure to meet billable hour goals and/or requirements. Further, attorneys should conduct their work activities with integrity to continue being a valuable resource to clients and their employers. Being mindful of these rules will help ensure that clients, attorneys and their employers are maximizing the work at-home experience.

 

This pandemic is unchartered territory, but new and seasoned attorneys can make the most of the situation by continuing to work hard, while also taking time to refresh and be mindful of the duties they have as professionals working in a new setting. By applying these tips to a remote work environment, employees and employers can continue putting forth diligent, honest, and mindful work for the clients they represent. For other resources regarding Legal Ethics and COVID-19, see Missouri legal ethics at http://molegalethics.org/ethical-considerations-for-missouri-lawyers-regarding-the-covid/ or Illinois’ Attorney Registration & Disciplinary Commission at https://www.iardc.org/Coronavirus.pdf. For more information on each of the Model Rules of Professional Conduct, visit the American Bar Association website at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/.

 

[1] Holly Secon, Aylin Woodward, & Dave Mosher, A Comprehensive Timeline of the New Coronavirus Pandemic, from China’s First COVID-19 Case to the Present, Business Insider (March 24, 2020) (https://www.businessinsider.com/coronavirus-pandemic-timeline-history-major-events-2020-3).

[2] COVID-19 Coronavirus Pandemic, Worldometer (Last Updated March 26, 2020) (https://www.worldometers.info/coronavirus/).

[3] Alicia Lee, These States Have Implemented Stay-At-Home Orders. Here’s What That Means for You, CNN (March 25, 2020) (https://www.cnn.com/2020/03/23/us/coronavirus-which-states-stay-at-home-order-trnd/index.html).

HeplerBroom attorney Emilee M. Bramstedt contributed to this blog post.