Of the many impacts that COVID-19 is having on the practice of law, perhaps the most challenging is the transition to remote or virtual office operations. For example, using video-conferencing for client meetings, depositions and certain hearings is gradually becoming the new normal. These new, remote operations create ethical pitfalls for lawyers. The ethics of practicing law require us to remain in control, even while working remotely. This article provides an overview of some common ethics traps for lawyers in Maryland, Washington, D.C., and Virginia in the era of social distancing.
The Problem
COVID-19 has wreaked havoc on all aspects of American society. Nowhere is this more true than in the practice of law, where day to day activity depends on a functioning judiciary system. We need the courts, the clerk's office, the judges, the court reporters and everyone else associated with the judicial system to be running. It is only through a functioning judiciary system that civil litigants can have a forum for resolution of disputes.
For the short term, every court system in our area has issued administrative orders that permit the courts to remain open for the most emergent matters while prioritizing the safety of the public and court personnel.1
Despite current limitations, many citizens are looking forward to a "reopening" of businesses and a return to normal. No one knows exactly what the "new normal" will be, but we do know that learning the "new normal" is something that the Maryland Attorneys' Rules of Professional Conduct, the D.C. Rules of Professional Conduct, and The Virginia State Bar Rules of Professional Conduct have prioritized. All have adopted versions of the ABA Model Rules of Professional Conduct, and these rules continue to apply, even during states of emergency and as we proceed to our "new normal." As a result, counsel should be mindful of how practicing law in the new normal implicates many of the Rules of Professional Conduct.
Attorneys Have an Ethical Obligation to Be Aware of Technological Changes in the Practice of Law
The most prevalent change to providing legal services is the increased use of technology, whether it be for court hearings, expanded electronic filings, client meetings, depositions, exchanging documents, or executing contracts and wills. Counsel has long had the obligation to be aware of changes in technology. Atty. Griev. Comm'n v. Reinhardt, 391 Md. 209, 232, 892 A.2d 533, 546-547 (2006) (Harrell, J. dissenting).2
The duty to stay abreast of changes in technology has become part of many codified rules as a comment. In this regard, in 2012, the ABA added Comment 8 to Model Rule 1.1 (Competence):
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Similarly, the District of Columbia Bar has proposed technology-based revisions to its Rules of Professional Conduct.
One problem we have seen recently is a concern over the security of certain videoconferencing platforms. For example, there have been several articles (see two of them here and here) about problems with Zoom, an easy to use videoconferencing service. Failing to use a secure service could result in a breach of client confidences and secrets under Rule 1.6. It could also result in an unwanted disclosure of a client's protected personal health information. As we proceed with increased use of videoconferencing technology, we urge counsel to ensure that services are reasonably designed to protect from unwanted security breaches. In circumstances where security and confidentiality cannot be guaranteed, we urge attorneys to continue those matters until a secure video connection or in-person hearing can be conducted.
Working Remotely Does Not Change an Attorney's Ethical Obligations
Another adaptation to the new normal is the use of remote depositions in the time of social distancing. While depositions by videoconference have been a part of the practice of law for several years now under certain circumstances, the "new normal" may require counsel and witnesses to be in separate places or to prepare for the deposition remotely, rather than together. These variables also can present ethical challenges. For example, do you as counsel believe that you can adequately prepare your client remotely? Does your analysis change in a case where there is tangible evidence or a video that the witness will be questioned about? Does the witness have a medical issue that makes him or her high risk such that the deposition cannot be done in person when you believe it in your client's best interest to take the deposition in person? These various questions implicate counsel's duty to competently (Rule 1.1) and diligently (Rule 1.3) represent the client while also keeping in mind that counsel also must be respectful of the rights of third persons (Rule 4.4).
While the new normal may be uncertain, we are certain of one thing: an attorney's ethical obligations remain the same, regardless of how the new normal is defined. So, even if you are working remotely, don't lose control of your practice.
If you have received a letter from Bar Counsel or a client has filed a complaint with the Attorney Grievance Commission, or you are currently defending a Petition for Disciplinary Charges, we can help. Contact the author, Craig Brodsky, who has extensive experience handing these cases and is available to address your concerns.
1 Orders Issued:
- https://www.mdcourts.gov/coronavirusupdate
- https://mdcourts.gov/coronavirusorders
- https://mdcourts.gov/sites/default/files/admin-orders/20200408emergencytollingorsuspensionofstatuesoflimitationsamended.pdf
- https://www.dccourts.gov/coronavirus
- https://www.dccourts.gov/sites/default/files/matters-docs/General%20Order%20pdf/Order-3-18-20-Final.pdf
- https://www.dccourts.gov/sites/default/files/matters-docs/General%20Order%20pdf/addendum-to-general-order-re-pandemic-3-30-20.pdf
- http://www.courts.state.va.us/2020_0316_scv_order_declaration_of_judicial_emergency.pdf
- http://www.vacourts.gov/news/items/2020_0327_scv_order_extending_declaration_of_judicial_emergency.pdf
2 ("Reinhardt knew or should have known, given modern docket management practices and technologies used by clerks' offices statewide, that Md. Rule 2-507(c) (dismissal after one year for lack of prosecution) likely would be effectuated, irrespective of whether he actually received a copy of the formal Notice of Contemplated Dismissal from the clerk, sent on 27 September 2001).
