Can you ethically withdraw from representing a client if you fear contracting COVID-19 as a result of some aspect of the representation? Earlier this month, the New York State Bar Association issued an ethics opinion that said “Yes,” provided that the lawyer gets any necessary permission from a tribunal. While advisory for New York lawyers only, the brief opinion has a straightforward analysis that other jurisdictions could adopt.
“Mental or physical condition”
The inquiry that the NYSBA committee considered came from a lawyer representing a client in immigration court proceedings, where the court did not yet have any COVID-19 safety protocols in place, but was nonetheless scheduling in-person appearances. The lawyer was “concerned that appearing in person presents a substantial health risk for the inquirer and, by extension, the inquirer’s family.”
New York’s Rule 1.16(c)(9), on withdrawal, differs from the ABA Model Rule. The New York Rule permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.” In contrast, Model Rule 1.16(a)(2) mandates withdrawal when ” the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client,” but contains no permissive off-ramp that is similar to New York’s.
The NYSBA committee, applying the Empire State’s more flexible rule, identified several examples of how the inquirer’s fear of iinfection could possibly undermine the effectiveness of the representation:
- reluctance to spend time in person with the client sufficient to understand the case and communicate the client’s options;
- willingness to “consent prematurely” to some outcome in order to end the proceeding faster;
- hastening to complete the tribunal’s required in-person hearing in order to limit potential viral exposure, perhaps without calling witnesses or maybe waiving cross-examination.
Any of these influences to which the inquirer would be susceptible, said the committee, would satisfy the standard for permissive withdrawal. As always, the committee emphasized, if a tribunal requires permission for withdrawal, the lawyer must seek it.
How realistic is the concern expressed by the inquirer in this ethics opinion? Commentary out of New Jersey last week reported on a 68-year-old lawyer who attended a then-required in-person immigration hearing in June, contracted COVID-19 and died — and the lawyer’s successor counsel, who was required to be together with the client at a subsequent virtual proceeding, also contracted COVID, along with the lawyer’s spouse.
Unlike the situation presented by the NYSBA inquirer, many hearings are now virtual, and it would seem exceptional at this point for a courthouse not to have COVID-protection protocols in place. But concerns clearly remain.
ABA, others, also weigh in
In April, as the first U.S. wave of COVID-19 was making itself felt, the ABA pointed to its previous 2018 opinion on lawyering in a “disaster,” and particularly the requirement that a lawyer withdraw if a mental or physical health concern “materially impairs” the ability to represent the client. (We also commented on the “disaster-lawyering” opinion.)
Other jurisdictions (e.g., Florida, Indiana, Oregon,, Utah) have also at least considered the withdrawal issue in light of the pandemic (particularly if the lawyer should become ill), though without putting out ethics opinions.
And at least one other jurisdiction — California — has a variation on the “difficult representation” language that, effective June 1, 2020, actually mandates withdrawal if a California “lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively.”
In addition, of course, Model Rule 1.16(b)(7) (and analogous rules in in other jurisdictions), is a catch-all provision permitting withdrawal if “other good cause for withdrawal exists.”
Would the NYSBA committee have decided the same way if the court involved would have had good COVID-protection protocols at the time of the inquiry? Perhaps, but not necessarily. The situation is fluid, and as a “third wave” of infections appears to be gripping the U.S., this could be a developing area.
As always, your own jurisdiction’s rules and ethics opinions control, but you should keep the withdrawal principles in mind if you find yourself in fear of infection.