by Jeremy G. Suiter

The ongoing COVID-19 pandemic continues to impact the practice of law. In July, Governor Newsom announced that, once again, some sectors of the economy would be required to cease indoor operations or close their doors in an effort to reduce the spread of the COVID-19 virus. These and other stay-at-home orders, social distancing requirements, and court closures have meant that many lawyers over the past several months have been working remotely or without the assistance of support staff for the first time in their careers. This new reality presents challenges, but does not suspend the ethical duties imposed by the California Rules of Professional Conduct (CRPC). In August, another Ethically Speaking column discussed certain ethical issues in working remotely, primarily involving the duty of confidentiality under CRPC 1.6. This article highlights certain other ethical rules and opinions for Orange County lawyers to keep in mind during these unprecedented times.

Competence: CRPC 1.1

Rule 1.1 requires lawyers to perform legal services with competence. The current pandemic implicates several components of this rule.

One component is substantive competence—the ability to apply the “learning and skill” reasonably necessary to perform legal services. CRPC 1.1(b). Practically speaking, this means we must understand the subject matter of the representation and have the knowledge and experience to perform the work. You should stay current with substantive law, including how your practice areas may have been impacted by the pandemic, including whether any deadlines or statutes of limitations have been revised, and whether your jurisdiction permits the use of remote signatures or remote testimony. You should monitor state and local bar associations for guidance on best practices to meet your ethical obligations as the pandemic continues. And you should avoid giving legal advice on issues involving the pandemic if you lack the knowledge and experience to perform the work.

So what happens if a new or existing client seeks advice on a pandemic-related matter—such as family leave regulations, government loan applications, or compliance with public health orders—that goes beyond your regular practice areas? A lawyer facing this situation has several options to provide competent representation. You may (i) associate or, where appropriate, professionally consult, with another lawyer whom you reasonably believe is competent in that practice area; (ii) acquire sufficient learning and skill before performing the legal service; or (iii) refer the matter to another lawyer whom you reasonably believe is competent. Rule 1.1(c). If you are faced with an emergency, such as a client who is ill with COVID-19 and wants a will prepared immediately, Rule 1.1(d) permits a lawyer to give advice or assistance in a matter in which compliance with Rule 1.1(c) would not be practical under the circumstances. But even in an emergency, you must limit your assistance to that which is reasonably necessary under the circumstances. Rule 1.1(d).

Another component is technological competence. As a recent California State Bar ethics opinion explains, a lawyer’s duty of competence includes a basic understanding of the “benefits and risks associated with relevant technology.” Cal. State Bar Interim Opn. No. 16-0002, citing Cal. State Bar Formal Opn. No. 2015-193. So what does this mean for lawyers working remotely who connect to their office via Wi-Fi or engage in client videoconferences via Zoom? You must be technologically capable to do so effectively, and have a basic understanding of the risks posed by using that technology. If you cannot comply with this requirement, you should obtain help from someone with appropriate expertise in that technology. Id.

A third component of this rule requires lawyers to have “the mental, emotional, and physical ability” reasonably necessary to perform legal services. Rule 1.1(b). Should a lawyer become afflicted with COVID-19 or another ailment that affects the lawyer’s ability to provide competent representation, the lawyer should communicate this inability to his or her clients and not perform any legal services during that period. Understandably, we often push ourselves in the face of illness or calamity in the interests of our clients. But Rule 1.1(b) recognizes this can be inappropriate in certain circumstances. Indeed, if a lawyer’s “mental or physical condition renders it difficult for the lawyer to carry out the representation effectively,” Rule 1.16(b)(8) authorizes the lawyer to withdraw from the representation. In that situation, however, the lawyer must comply with Rule 1.16(c), which requires the lawyer to first obtain a tribunal’s permission when necessary, and Rule 1.16(d), which prohibits termination until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.

Diligence: CRPC 1.3

Rule 1.3 requires representation with reasonable diligence. This means a lawyer must act “with commitment and dedication to the interests of the client” and not “neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.” CRPC 1.3(b). With many offices closed and some court services suspended, how do you diligently represent a client in the age of COVID-19?

Lawyers should ensure they have access to their calendars and client files so they can keep track of their matters and any upcoming calls, deadlines, closings, hearings, or appointments. You should plan how to handle mail and messenger deliveries, and how to obtain copies, scans, client documents, and other items they may need as part of their practice. If you have litigation matters, you should regularly check with courts or arbitration providers to see whether their rules or procedures have been revised, and whether hearings have been continued or filing deadlines extended. Finally, you should ensure that your clients’ interests have priority over your own personal interests. With proper planning and execution, lawyers working remotely can still represent clients with reasonable diligence, despite the inconvenience of office and court closures.

Communication: CRPC 1.4

Rule 1.4 requires reasonable communication with clients. This includes the obligations to keep clients reasonably informed about significant developments in the representation, and to comply promptly with a client’s reasonable requests for information and copies of significant documents when necessary to keep the client informed. CRPC 1.4(a).

Complying with Rule 1.4 may seem difficult when working remotely, but current technology makes it easier for lawyers to communicate with clients, and there are affirmative steps that you can take to maintain reasonable communication. Make arrangements to ensure access to client files, whether hardcopy or electronic. Make sure you have contact information for every client, and that every client has your contact information if they need to contact you. Reach out to your clients to discuss the impact of the pandemic and the best way for both of you to communicate during this period, whether by mail, phone, email, or video calls. If you are unable to check the mail regularly at your office, consider having mail forwarded to your home. Keep clients regularly informed about the status of their matters, specifically including any court closures or continuances. Posting updates about the operations of your law office on your website or social media sites, if you have any, can also help.

You also should communicate with your clients about the possibility of you or them becoming sick. Ask clients to keep you apprised of any health conditions or concerns they or their family members may have that could prevent the client from signing documents, appearing at a court hearing or deposition, attending a closing, or otherwise assisting in your representation. Provide your clients with the details of your firm’s succession plan and the contact information of another attorney in your firm in case you become ill or otherwise unable to continue handling the matter. If you are a solo practitioner or your firm does not have a succession plan, give your clients the contact information for another attorney who would take over the matter in the event of your illness or inability to proceed. The “reasonable” requirement of Rule 1.4 provides some flexibility during the pandemic, but you should make sure to reduce client concerns by keeping them reasonably informed.

Supervision: CRPC 5.1 & 5.3

Rules 5.1 and 5.3 impose duties of supervision on lawyers who have managerial or supervisory authority over other lawyers or non-lawyer personnel. Specifically, Rule 5.1 requires lawyers with managerial authority in a law firm, or direct supervisory authority over another lawyer, to make reasonable efforts to ensure that such other lawyers comply with the CRPC and the State Bar Act. Similarly, Rule 5.3 requires lawyers with managerial authority in a law firm, or direct supervisory authority over a non-lawyer, to make reasonable efforts to ensure that the non-lawyer’s conduct is compatible with the professional obligations of the lawyer.

Although many lawyers and non-lawyers now work from home, these duties of supervision remain in place. Managers and supervisors should stay in contact with their subordinates to provide reasonable assistance, instruction, and supervision. The same technology you use to connect with clients can be used to connect with subordinate lawyers and staff. You should ensure that all firm personnel have access to, and training in, technology that enables working from home. You should keep a database of contact information for all firm personnel. If you have one, you should distribute and explain your firm’s pandemic or emergency preparedness plan. Regular communications by phone, videoconference, and email can help ensure you are meeting your supervisory obligations during the pandemic.

Conclusion

Here are some helpful links to provide further information:

The California Rules of Professional Conduct:

The California State Bar Ethics Opinions:

The California State Bar Ethics Hotline:

The California State Bar COVID-19 Updates:

The age of COVID-19 is a difficult time for us all. Although technology makes it easier to provide legal services from home, working remotely also makes it easier to breach your ethical duties to your clients. Being mindful of this fact, reviewing the applicable rules, and applying them in your practice can help you avoid an inadvertent ethics violation during the pandemic. Stay safe.

Jeremy G. Suiter is a shareholder with Stradling Yocca Carlson & Rauth, PC in Newport Beach, California, where he specializes in business litigation and serves as the firm’s deputy general counsel. Jeremy is a member of the OCBA’s Professionalism and Ethics Committee. He can be reached at jsuiter@sycr.com. The views expressed herein are his own.