Lawyers are essential during crises to help clients with their changing legal needs. This crisis is presenting unique challenges, forcing attorneys to serve their clients in new ways. While many court services are suspended, businesses are temporarily closed, and most work must be done remotely, the Michigan Rules of Professional Conduct (MRPC) are still in full effect. This resource is intended to help you identify and assess ethical issues during the COVID-19 pandemic. It is informational only and does not constitute legal advice.
How do I meet my ethical obligations during a crisis?
Communication—MRPC 1.4
Even during a crisis, a lawyer has the duty to “keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information.” MRPC 1.4. With courts suspending services and lawyers being forced to work from home, it may be daunting to figure out how and when to communicate to clients.
Maintain clear and regular communications with clients, including:
- How to Communicate: Encourage contact and provide the client with the best way to contact you: mail, phone, text, video calls, whatever method works best for you and your client.
- Status Updates: Advise of the status of court cases. Clients may not understand the extent to which courts are closed and the delay that this may cause to their case. Even amidst a pandemic, clients may still believe that their case is the most important thing in the world. Keep clients current as to the status of their cases and do not make promises regarding the outcome. If you do not know the answer to a client’s question, do not be afraid to admit that. To stay up to date on the status of business being conducted in courts, SBM has links to Michigan Supreme Court emergency administrative orders and guidance on local courts.
- Succession Plan: If you have a succession plan in place, tell your clients what to expect, including who will contact them, if you should become ill or otherwise unexpectedly be unable to represent them. If you don’t have a plan in place, this is a great time to create one.
- Power of Attorney: Ask your clients if they have a power of attorney or legal representative with whom you should communicate in case your client becomes ill or otherwise unable to communicate with you. Best practice is to get this authority in writing. If they do not have a plan in place, be prepared to provide resources.
Diligence—MRPC 1.3
A lawyer has a fundamental obligation to represent a client competently and diligently. RI-343. This includes “pursu[ing] a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to a lawyer.” Comment to MRPC 1.3. With court services suspended, businesses temporarily closed, and attorneys working remotely, how does an attorney diligently represent a client?
- Stay informed. The State Bar of Michigan (SBM) has numerous resources available to keep lawyers up to date on administrative orders and executive orders, local courts, and practice management tools to help accommodate the practice of law during the pandemic. SBM also has an FAQ page that is regularly updated with questions we receive from attorneys. If you have a question that has not been answered, email covid19@michbar.org.
- Utilize technology. The Michigan Supreme Court has urged courts to utilize technology when possible, and the bar must respond accordingly and learn how to use the appropriate technology to diligently represent clients. Take advantage of video-conferencing, remote notarization, e-mail, and e-filing where available. The State Bar is a source of help if you need it.
- Communication. Communication with clients is imperative so that clients are aware of the status of their matter, any restrictions on the lawyer’s ability to continue representation, or restrictions imposed by the courts. SBM has COVID-19 resources to help you communicate with clients with additional tools at the Practice Management Resource Center.
- Self assessment. Throughout the crisis, lawyers should assess their personal ability to provide adequate representation. SBM’s COVID-19 Response and Lawyers and Judge Assistance Program has resources available for lawyers to help deal with the stress and anxiety which may occur during periods of significant change. The Lawyers and Judges Assistance Program (LJAP) is available to assist with general wellness information for the legal profession, as well as specific monitoring programs if needed.
Competence—MRPC 1.1
Changing times mean new opportunities. Not only are attorneys being asked to work in new ways, but clients are going to ask new questions that you should be prepared to answer.
- Substantive competence. Many clients’ legal needs will change during and after the pandemic. More clients will request estate plans, try to understand changes to federal and state benefits, want to know how unemployment affects pending family law cases, take extraordinary steps to keep their businesses alive, and so many more questions we may not expect. If you decide to provide answers, you must do so competently. Researching and learning the answers to these novel questions can also stave off boredom. Resources are available to help you. SBM sections have been focused on assessing how the law needs to change to respond to the COVID-19 pandemic, including remote witnessing of documents, remote notarization, and remote signatures for elections. Lawyers are encouraged to join a section, following sections’ listservs, and get involved in helping the law respond and adjust to crisis circumstances.
- Technical competence. Many of us are taking a crash course in remote access, video conferencing, and establishing normalcy when we are not in our offices. SBM’s COVID-19 Resource and Practice Management Resource Center have numerous resources regarding technology, including use of cloud based program, e-signing, and video conferences here: Technology. SBM’s Practice Management Resource Center also offers disaster preparedness and response resources. The American Bar Association offers numerous free resources in its Law Practice Division publications and in its Legal Technology Resource Center.
Confidentiality—MRPC 1.6
Today’s technology provides a variety of options for working remotely: video conferencing, shared files, email, and more. This technology can help you remain productive and continue to provide services to clients. You must, however, remain mindful of your ethical obligations to keep information secure while using these services.
A lawyer has an ethical obligation to protect the confidentiality of client information, including exercising reasonable care to prevent employees, associates, and others from disclosing or using confidential information. MRPC 1.6. “A lawyer must formulate, adopt, and follow policies and procedures, appropriate to the lawyer’s field(s) of practice, regarding the use, transmission, and storage of client [electronically stored information]. In addition, a lawyer must evaluate whether specific cybersecurity measures are appropriate for the representation of a client in a particular matter.” RI-381. See also ABA Formal Opinion 477 . This is particularly applicable while working remotely utilizing electronic resources.
What may be considered reasonable cybersecurity can change over time and with the advancement of technology. Thus, you must periodically assess whether your policies and procedures regarding electronically stored information are consistent with current technology. You must also ensure that your employees, associates, and other services your use maintain the confidentiality of client information.
Having a remote work plan helps to ensure that business operations can continue even in the face of unexpected circumstances such as a pandemic. It also helps ensure that you can continue to assist your clients and provide necessary services.
Supervision—MRPC 5.1 & 5.3
Even though lawyers may not be working in a traditional office setting right now, the duty to supervise remains in effect. A partner in a law firm must make efforts to ensure that all lawyers in the firm conform to the Rules of Professional Conduct. MRPC 5.1. In addition, any lawyer having direct supervisory authority over a nonlawyer must ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. MCRP 5.3. A lawyer should give nonlawyers personal assistance, appropriate instruction, and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client. A lawyer should be responsible for the work product of the nonlawyer. RI-001. The duty of supervision is particularly important with regard to nonlawyers to ensure that they do not unintentionally stray into the unauthorized practice of law. MRPC 5.5
While exercising supervisory responsibility may be a bit more difficult right now, the same tools that help you connect with your clients can help you connect with your staff and other lawyers. Video conferencing, emails and telephone calls can all be utilized to make sure that you are meeting your professional obligation to supervise lawyers and nonlawyers in your organization.
What if I become ill?
Hope for the best and plan for the worst.
The COVID-19 pandemic highlights the need for attorneys in private practice to engage in thoughtful succession planning to protect their clients and law practice should they become unexpectedly unable to practice law. Find another attorney you trust now and make a plan.
“Michigan lawyers are strongly encouraged to prepare a comprehensive succession plan specific for their law practices to protect their clients and fulfill their ethical responsibilities under the MRPC should they become unavailable due to death, disability, discipline, disappearance, or any other circumstance.” RI-374.
For attorneys in larger law firms, the firm can typically step in to take over representation on short notice, but even firms need contingency plans in place, particularly with the possibility of many attorneys becoming ill at the same time.
The need for succession planning is even greater for small firms and solo practices. SBM has a Planning Ahead Guide that walks attorneys through the process. The first step is to find someone—an attorney—to close or temporarily manage your practice in the event of your death, disability, impairment, or incapacity. The arrangements you make for closure of your office should include a signed consent form authorizing the Assisting Attorney to contact your clients for instructions on transferring their files, authorization to obtain extensions of time in litigation matters when needed, and authorization to provide all relevant people with notice of closure of your law practice.
What if my client becomes ill?
COVID-19 is an unpredictable, serious, and potentially deadly virus. Acknowledging this reality, lawyers must consider what happens when a client becomes ill and how the rules of legal ethics impact their duties and responsibilities to that client.
- What general ethical duties govern communications with my client? MRPC 1.4 sets forth the essential duties a lawyer has to his or her client regarding communication. MPRC 1.4 provides that a lawyer must “keep the client reasonably informed about the status of matter and comply promptly with reasonable requests for information.” This duty, like the vow of marriage, exists “in sickness as in health.” The fact that a client may have COVID-19 does not lessen the lawyer’s duty to keep the client informed. As the Comments to MRPC 1.4 note, “the guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests and consistent with the client’s overall requirements as to the character of the representation.” Remember that communication with a client battling COVID-19 will almost certainly be electronic and/or virtual. The lawyer’s safety and that of the entire community is dependent on following all applicable public health guidelines and orders regarding social distancing. The SBM’s COVID-19 Resource and Practice Management Resource Center have a number of resources to help attorneys harness technology to facilitate the practice of law remotely.
- What happens if the client’s battle with COVID-19 deepens and the client is hospitalized and possibly placed on a ventilator? In such a grave situation, a lawyer should consult MPRC 1.14, Client under a Disability. You must consider to what extent you can “maintain a normal client-lawyer relationship” given the client’s condition. The Comments to Rule 1.14 state, a lawyer must remember that “the fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect.”
A person suffering from COVID-19 may endure relatively sudden changes in his or her health status. Therefore, lawyers will be challenged to assess their client’s individual situations in light of applicable rules and regulations. Ethics opinions RI-076 and RI-051 provide additional guidance to lawyers seeking to navigate the difficult landscape of client communication under these circumstances.
Disaster Preparedness Plan
In 2005, after Hurricane Katrina brought disastrous floods in Louisiana, the ABA and other legal entities began recommending that lawyers create a plan to deal with disasters. ABA Formal Ethics Opinion 482 provides guidance for lawyers in the wake of a disaster.
Social Media
As we are forced to stay at home and practice social distancing, people are also turning more toward social media to stay connected with friends and family. Social media also offers opportunities to market your business. SBM has social media ethics FAQs to help you navigate ethical issues and avoid making mistakes when engaging in social media.