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Ethical concerns regarding COVID-19

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EthicsFlorida lawyers, like everyone else, are concerned about COVID-19 and the impact the current situation has on themselves, their families, and their communities. Lawyers have the additional concern about fulfilling their ethical responsibilities to their clients.

The following provides general guidance on ethics concerns. Lawyers with emergency questions about their own future conduct may email [email protected]. An ethics lawyer will be monitoring email and will respond only to emergency questions.

1. What concerns should I have about supporting the justice system during COVID-19?

ANSWER: Rule 4-1.1 requires lawyers to provide competent representation to clients. This includes keeping up with the current situation. The following resources can help:

Stay up to date on the advice and recommendations from public health authorities. The “Consumer Resources” tab of The Florida Bar’s COVID-19 Resources and Information page has links to information from public health authorities.

Regularly check and review information provided by the court system, including the Florida Supreme Court, the Office of the State Courts Administrator, and your local court. The “Court Orders” tab has links to keep you up to date with this information.

2. What can I do now to prepare, in case I get sick or have to self-isolate?

ANSWER: As unpleasant as it is, part of providing competent representation includes thinking about what would happen to your clients if, for some reason, something happens to you and you are unable to continue the representation. One thing you can do now is to create a plan for how you are going to protect your clients’ interests should you become ill or have to self-isolate. Succession plans should account for both temporary inability to practice and long-term or permanent inability to practice.

If you are in a firm with other lawyers, discuss and create a plan for how those other lawyers would handle your cases if you become sick or have to self-isolate and plan how you can assist to handle their cases. Consider whether you will be able to practice remotely, whether clients’ matters can be continued or postponed temporarily, whether the firm will need to bring in outside lawyer to help with client matters (if that lawyer is in a different firm, the affected clients must consent), and whether the firm may have to withdraw from representation of some clients.

If you are a sole practitioner, you also will want to set up a plan of action. You should consider whether you can serve your clients remotely, whether clients’ matters can be continued or postponed temporarily, whether you will need to bring in an outside lawyer to help with client matters, and whether you may have to withdraw from representation of some clients. If you bring in an outside lawyer to assist you with specific client matters, you will need the affected clients’ consent. You may also want to reach out to the lawyer you designated to serve as your inventory attorney under Rule 1-3.8 to see if that lawyer would be willing to help if you become ill or have to self-isolate.

Lawyers should review Rule 1-3.8 on inventory attorneys. This rule provides for the appointment of an inventory attorney under certain circumstances: [w]henever an attorney…dies, or suffers an involuntary leave of absence due to…catastrophic illness, or injury, and no partner, personal representative, or other responsible party capable of conducting the attorney’s affairs is known to exist,” the circuit court can appoint an attorney or attorneys to inventory the files and protect the clients’ interests. Lawyers are required, with some exceptions, to designate another lawyer to serve as inventory attorney. Rule 1-3.8(e). Information on inventory attorneys is available on The Florida Bar’s website.

The Florida Bar’s Practice Resource Center/Legal Fuel has gathered helpful information about disaster planning and COVID-19. This information includes links regarding preparation for your firm, disaster resources, and technology resources. It is highly recommended that lawyers review this information to assist them in making plans.

3. I’m concerned about exposure to COVID-19 so I’d prefer not to go to court or have face-to-face contact, but I also need to represent my clients. What can I do ethically?

ANSWER: Rule 4-1.4 requires you to keep clients reasonably informed about the status of the matter and also to explain matters to the extent reasonably necessary to allow the clients to make informed decisions about their representation. You will want to discuss with clients alternative arrangements for communication such as email, video conferencing, other electronic means, and even texting. However, lawyers have the duty of confidentiality, so you want to make sure the methods you choose will be secure.

In determining whether you can practice remotely, you will need to consider whether you will still be able to provide competent representation to clients under Rule 4-1.1. You should consider whether the client’s matter can be postponed or continued, including whether doing so would harm the client. In making these determinations for clients with pending court cases, you should also consider any special arrangements the tribunal has made in light of the coronavirus pandemic. Please see information under the “Court Orders” tab of The Florida Bar’s COVID-19 Information and Resources page.

4. I’m sick and it could be COVID-19 or I need to self-isolate. What are my ethical duties?

ANSWER: Follow your doctor’s instructions and all CDC and other public health authorities regarding COVID-19. The “Consumer Resources” tab has links to information from public health authorities.

If you are sick, do not go to court without first advising the court and seeking direction on how to appear. As stated on the “Court Orders” tab, “Chief Justice Charles Canady issued an Administrative Order on March 13 limiting most face-to-face legal proceedings and suspending all grand jury proceedings, jury selection proceedings, and criminal and civil jury trials for a minimum of two weeks beginning Monday, March 16. The order authorizes local judges to use remote electronic means whenever possible and will be extended or modified as needed.” A PDF of the Administrative Order is available at the “Court Orders” tab of The Florida Bar’s COVID-19 Information and Resources page. Under Rule 4-3.5(b) you cannot engage in ex parte communications as to the merits of the case.

Communicate with your clients about how your illness or need to self-isolate will affect their representation. Under Rule 4-1.4, lawyers have a duty to keep clients reasonably informed about the status of their matters and also to explain matters to the extent reasonably necessary to allow the clients to make informed decisions about their representation.

If you have a succession plan in order, implement the plan. If you will be relying on lawyers outside of your firm, you will need to discuss this with the affected clients and obtain their permission.

If you do not have a plan already, consider what you need to do to protect your clients’ interests. You should consider whether you are able to continue representing your client remotely. If this is not possible, you should consider what alternatives may be appropriate depending on each particular client’s needs, including, after consultation with the client, whether the client’s matter can be postponed or whether you need to bring in another lawyer to assist the client.

If you are too ill to continue representation and you cannot get another lawyer to step in during your illness, you should consider whether you need to withdraw from the representation under Rule 4-1.16(a). If the client’s matter is before a tribunal, you must consider whether you need the tribunal’s permission to withdraw. See Rule 4-1.16(c). You also need to take steps to the extent reasonably practicable to protect the client’s interest, “such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred.” See Rule 4-1.16(d). What reasonably practicable steps must be taken to protect a particular client’s interests will depend on the facts and circumstances of that particular client’s matter.

The Florida Bar is posting court and  Bar updates on its website as they become available regarding the COVID-19 pandemic.

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