Ethics during COVID-19
Every lawyer and law firm should have a plan for an emergency, be it a stay-at-home order or a hurricane
On April 1, 2020, Governor Ron DeSantis issued the statewide Safer at Home Executive Order 20-91. The order directs all persons in Florida to limit movements and personal interactions outside their homes to only those required to obtain or provide essential services or conduct essential activities. However, the order does not specifically address the provision of legal services. In response to questions regarding the meaning of “essential services” under the order, the Governor said that the goal is to avoid close contact with others outside the home to reduce the transmission rate of the virus. Florida Bar President John M. Stewart issued a statement regarding the Executive Order that was sent by email to all Bar members. In this statement, President Stewart stated: “[a]lthough specifics are not provided regarding provision of legal services, you should carefully review this, and all other relevant orders, and use your best judgment to determine whether your work meets the mandates of the order” President Stewart further stated: “We stress that the absolute best course to take at this time is to work remotely using electronic communications and to avoid in-person contact as directed. When that isn’t possible, you should follow the health and safety guidelines issued by national state and local health officials (posted on our COVID-19 webpage) concerning proper hygiene, social distancing, and other recommended protocols.”
COVID-19, social distancing, and stay-at-home orders have impacted how lawyers are practicing law. Lawyers are practicing remotely, and this is a new situation for many lawyers and their staff. This article provides general information about ethics rules and opinions to keep in mind during the current COVID-19 outbreak as well as for future hurricanes and other disasters.
It is permissible for lawyers to practice remotely, including from their homes. However, lawyers practicing remotely are still subject to the Rules of Professional Conduct. Lawyers have an obligation under Rule 4-1.1 to provide competent representation to clients. As explained in the comment to the rule, this duty includes “an understanding of the benefits and risks associated with the use of technology.” For many lawyers, the current situation involving COVID-19 and the need for social distancing may be the first time they have had to practice remotely.
Ethics Opinion 00-4 notes that lawyers may practice over the internet if they can do so competently. Ethics Opinion 12-3 allows lawyers to use cloud computing provided they follow the guidelines set forth in the opinion. Lawyers should make sure the technology they use to practice remotely is secure and protects confidential information. The Florida Bar’s Practice Resource Center through LegalFuel has helpful information regarding remote practice and other technical issues, including free CLE programs. Additionally, links to Legal Fuel information specifically addressing COVID-19 concerns are provided at the end of this article.
Every lawyer and law firm should have a plan for an emergency, be it a stay-at-home order or a hurricane. A lawyer or law firm’s plan should include answers to questions such as: How will I access crucial documents? How can I contact my clients? How are my clients’ files, both physical and electronic, being protected? When is my next court appearance? Can my firm members or co-workers access my work if I get sick?
Lawyers need to check conflicts consistently, especially if working remotely. Lawyers should also make sure that they have access to their calendars so they can keep track of client matters and any upcoming deadlines, hearings, closings, appointments, or other matters. Lawyers should plan how mail and package deliveries are to be handled. Arrangements should also be made so lawyers can access calls and voicemail. Lawyers should also make sure that they can e-file and access the e-portal, if needed.
Lawyers should not forget their trust accounts. Rule 5-1.2(b)(5) sets forth the required information lawyers need to keep for their records for electronic transfers into and out of their trust accounts. Rule 5-1.2(e) governs electronic transfers from a trust account. Such transfers are limited to money required to be paid to a client or to a third party on behalf of a client; expenses properly incurred on behalf of a client, such as filing fees or payment to third parties for reserves rendered as part of the representation; money owed to the lawyer for fees that are earned and not in dispute; and money transferred from one trust account to another trust account.
During the COVID-19 outbreak, The Florida Bar and the Florida Supreme Court have created web pages with updates and links to courts across the state. Lawyers should determine which court’s closure impacts a client’s matter and check with that specific court regarding filing deadlines and hearing dates.
As always, lawyers should be wary of email scams. Lawyers should look closely at the return address of email to see if it is familiar, if an email is riddled with typos, and whether the links connect to the correct URL. Lawyers should also take steps to investigate any wire transfer requests as they may be fraudulent. Lawyers should not download files from unfamiliar senders as it could be malware.
Rule 4-1.6 makes all information relating to the representation of a client confidential, whatever the source of the information. Ethics Opinion 12-3 explains that “[a] lawyer may not voluntarily disclose any information relating to a client’s representation without either application of an exception to the confidentiality rule or the client’s informed consent. Id. A lawyer has the obligation to ensure that confidentiality of information is maintained by nonlawyers under the lawyer’s supervision, including nonlawyers that are third parties used by the lawyer in the provision of legal services. See, Florida Ethics Opinion 07-2 and 10-2.”
The obligation of confidentiality continues during an emergency. Lawyers must ensure that any computer, tablet, or phone used to access client information is password protected so that others, including family, will not have access to any confidential information.
Pursuant to Ethics Opinion 12-3, “lawyers who use cloud computing therefore have an ethical obligation to understand the technology they are using and how it potentially impacts confidentiality of information relating to client matters, so that the lawyers may take appropriate steps to comply with their ethical obligation.” This obligation remains with the lawyer whether they work from an office or from home.
Lawyers have a duty to communicate with their clients under Rule 4-1.4 of the Rules of Professional Conduct. Under this rule, lawyers have an obligation to keep clients reasonably informed about the status of their matter and to explain matters to the client to the extent reasonably needed to allow the client to make informed decisions.
The current circumstances have not changed the lawyers’ duties under this rule, although the method of communication may change. Lawyers should inform their clients of how they can be reached and how the lawyer intends to communicate with them. Lawyers can communicate with their clients over the phone, by email, and even text as long as it is done in a manner that protects client confidentiality. For example, lawyers working from home should communicate with clients in private and out of hearing of the other people at home to the extent possible. If the lawyer cannot communicate orally with a client without another member of the household being able to overhear the communication, the lawyer should communicate via email, if possible, or if that is not possible, should inform the client and seek the client’s consent. If lawyers are using a video platform to meet with clients or other lawyers, the lawyer should make sure it is secure, that confidentiality is protected, and that everyone who needs access to the platform has it.
Lawyers also need to inform clients of any upcoming deadlines, court appearances, mediations, closings, or other matters that are still taking place and how they will be handled. For example, if a court hearing will still be held, the lawyer should inform the client of whether the client must appear at court or if the client can appear telephonically or by another remote method. Additionally, lawyers must keep abreast of any court orders and determine if any court orders delaying or postponing matters applies to any of their clients and, if they are applicable, inform the clients of this fact and how it affects their matters.
Lawyers may need to rely on other lawyers in their firm or even lawyers outside the firm to assist them, particularly if the lawyer becomes ill or otherwise needs assistance. If the assistance comes from another lawyer in the firm who has not previously worked on the client’s matter, the client should be informed of this. If the lawyer wishes to bring in an outside attorney to assist, the client must be informed of this and consent to the other lawyer’s involvement in the client’s representation. Lawyers who have succession or disaster plans should consider whether to initiate the plan.
If a lawyer becomes ill and cannot continue representation, the lawyer should communicate this to any affected clients. If a particular client has a matter that cannot be continued until the lawyer recovers and no other lawyer can take over the matter, the lawyer must communicate this to the client and withdraw from the representation under Rule 4-1.16. If withdrawal is necessary and the client’s matter is before a tribunal, the lawyer must consider whether the tribunal’s permission to withdraw is needed. See Rule 4-1.16(c). Rule 4-1.16(d) requires a lawyer to take steps to the extent reasonably practicable to protect the client’s interest such as giving reasonable notice, allowing time for employment of other counsel, returning any papers or property to which the client is entitled, and refunding any unearned fees or costs that have not been incurred.
Rules 4-5.1 and 4-5.3 of the Rules of Professional Conduct require that a lawyer who has supervisory responsibility over another lawyer or nonlawyers take reasonable steps to ensure that those lawyers and nonlawyers comply with the ethics rules. During a pandemic, when employees may be forced to work remotely, this obligation can pose some challenges. As noted in the comment to Rule 4-5.1 on supervision of other lawyers, these steps include making sure there are procedures to detect conflicts, keeping track of important dates and deadlines, accounting for client funds and property, providing supervision of inexperienced lawyers, and having a means to resolve ethical problems. The comment to this rule also notes that the measures needed can depend on the nature of the firm’s practice and the structure of the firm, including taking into consideration the size of the firm and the experience level of the attorneys.
The comment to Rule 4-5.3 similarly urges a lawyer to enact measures to ensure nonlawyers under the lawyer’s supervision act in way that is compatible with the lawyer’s professional obligations. It states that lawyers are to give nonlawyers “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.” Supervisory measures should ensure that activities that require the independent judgment and participation of a lawyer are not delegated to a nonlawyer.
A lawyer who manages other lawyers and nonlawyers should have a plan in place to provide a reasonable assurance that those under the lawyer’s supervision know their ethical obligations and comply with the rules even while working remotely. To the extent reasonably practicable, there should be periodic communications between the lawyers and staff as well as review of their work to ensure compliance. The firm may want to have a system to identify dates and deadlines to make sure that matters are handled properly. The lawyer may wish to provide a refresher on the rules and have a procedure in place so that those lawyers and nonlawyers know what to do if an ethical problem arises. Finally, managing lawyers should take steps to make certain that there is proper oversight of the firm’s trust account.
Rule 4-1.6(b) requires a lawyer to reveal confidential information to prevent a client from committing a crime or to prevent death or substantial bodily harm. This mandatory disclosure requirement would apply in an instance in which a lawyer believes that a client may be suicidal. Rule 4-1.14 addresses clients under a disability. It requires that the lawyer maintain a normal client-lawyer relationship with the client to the extent it is reasonably possible. It also allows a lawyer to seek the appointment of a guardian or to take other protective action for a client who cannot act in the client’s own interest. There is a link to a Florida Bar News article concerning a lawyer’s duties to a suicidal client provided at the end of this article.
Another common question to the Ethics Hotline currently is whether lawyers and clients can use electronic signatures. The Preamble to Chapter 4 Rules of Professional Conduct Preamble defines writing or written as “a tangible or electronic record of communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and electronic communications. A ‘signed’ writing includes an electronic sound, symbol or process attached or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.” Therefore, for purposes of the Rules of Professional Conduct, it is permissible to have electronic signatures for documents such as fee agreements, closing statements, conflict of interest waivers, and any other documents required to be in writing or signed under the Rules of Professional Conduct.
Questions regarding electronic notarization and remote witnesses are legal questions rather than ethical questions. Section 117.021, Florida Statutes, defines “Electronic notarization.” The portion of the statute addressing the ability to electronically notarize documents such as loans and deeds came into effect January 1, 2020. The portion of the legislation that addresses electronic notarization of estate planning documents is not effective until July 1, 2020. See, Chapter 2019-17, Laws of Florida. There is also an exception to the ability to use electronic notarization in cases involving “vulnerable adults” as defined in section 415.102(28), Florida Statutes.
Swearing in Witnesses and Remote Testimony
Florida Supreme Court Administrative Order No. AOSC20-16 permits notaries, and those qualified to administer oaths, to swear a witness remotely from a location within Florida if the witness can be positively identified; if a witness is not in Florida and consents, a notary can swear a witness via audio-video technology equipment; and all rules of court procedure, orders, and opinions addressing remote testimony, depositions, other legal testimony, and the attestation of family law forms are suspended until the expiration of paragraph five of In Re: COVID-19 Emergency Procedures in the Florida State Courts, Fla. Admin. Order No. AOSC20-13 (March 13, 2020).
The Florida Bar: https://www.floridabar.org/news/releases/covid19/
The Florida Supreme Court: https://www.floridasupremecourt.org/Emergency
The Florida Bar’s RPPTL section podcast on remote notarization and remote witnesses: https://rpptl.org/DrawOnePage.aspx?PageID=124
The Florida Bar Ethics Informational Packets: https://www.floridabar.org/ethics/ethotline/ethotline003/
The Florida Bar Legal Fuel, A Law Firm Guide to Navigating COVID-19 Part 1: Awareness, Response, and Workplace Plans/Polices: https://www.legalfuel.com/covid-19-resources-for-lawyers-part-1-awareness-response-and-workplace-plans-policies/
The Florida Bar Legal Fuel, A Law Firm Guide to Navigating COVID-19 Part 2: Law Firm Operations: https://www.legalfuel.com/covid-19-resources-for-lawyers-part-2-law-firm-operations/
The Florida Bar Legal Fuel, A Law Firm Guide to Navigating COVID-19 Part 3: Serving Clients:https://www.legalfuel.com/covid-19-resources-for-lawyers-part-3-serving-clients/
The Florida Bar Legal Fuel, Beware Phishing Email: https://www.legalfuel.com/beware-phishing-email-with-subject-you-have-received-a-new-voicemail/