Attorneys Aren’t Immune from Ethical Obligations During the Pandemic

Smart Summary

  • Lawyers wanting to take on work during a period of scarcity must be certain they’re competent to perform the work, including the related technology required to do so.
  • Confidentiality during remote work can be breached not only by household members, but also by common internet-connected devices like the Amazon Echo or Google Home.
  • Partners and supervising attorneys must remain critically aware of document management systems and docketing/calendaring tools in use while others are teleworking.

With the onset of the COVID-19 pandemic, the day-to-day operations of law firms have changed, but the rules governing attorney conduct have not. Attorneys must keep in mind that the Ohio Rules of Professional Conduct still apply in full force, regardless of our current state of emergency.

Here are 3 important rules to keep in mind.

1. Duty of Competence

RULE 1.1: COMPETENCE- A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

It’s the first rule for a reason. First and foremost, you must ensure that you are competently representing your client, regardless of the circumstances. Your clients may come to you with different needs than you typically practice. A long-standing client may suddenly need employment advice, advice on the CARES Act, or maybe personal estate planning. While it’s hard to turn down work right now, take a hard look at potential engagements and evaluate whether you can competently take them on.

There is no exception to the duty of competent representation in times of an emergency. Keep in mind that your duty goes beyond substantive knowledge of the law, and also includes the competent use of technology, which I covered in detail on March 30.

2. Duty of Confidentiality

RULE 1.6: CONFIDENTIALITY OF INFORMATION- (a) A lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by division (b) or required by division (d) of [the] rule.

Remote work increases the risk of careless or inadvertent violation of the rules of confidentiality. If your kitchen is your new office, make sure that members of your household aren’t able to hear your confidential conversations. Also consider the less obvious eavesdroppers. Some firms have expressly requested that lawyers disable or unplug any home smart speakers like the Amazon Echo or Google Home while working from home. Finally, consider the security of your data when emailing or utilizing cloud storage. The Rules require that a lawyer must take “reasonable efforts” to prevent the inadvertent or unauthorized disclosure of confidential information (Prof.Cond.R. 1.6(c)). This likely includes using strong passwords, dual authentication, and enlisting the help of IT professionals.

3. Duty of Supervision

RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS-

(c) A lawyer shall be responsible for another lawyer’s violation of the Ohio Rules of Professional Conduct if either of the following applies:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved;

(2) the lawyer is a partner or has comparable managerial authority in the law firm or government agency in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action.

Remote work may make it more difficult for partners to supervise the work of all of the lawyers in the firm. For this reason, having effective lines of communication is vitally important. Each lawyer must be kept fully abreast on the firm’s document-management system to ensure that work product that is delivered to the client or submitted to the court is competently completed. He or she must also adequately supervise the firm’s docketing and calendaring system. While several courts, including the Ohio Supreme Court, have issued orders tolling time requirements, lawyers must remain vigilant in complying with all deadlines that may be unaffected by the COVID-19 pandemic.

To offer lawyers in-depth guidance on meeting their ethical obligations during the pandemic, Jane and her colleagues on Kegler Brown’s Professional Responsibility team will be presenting a free CLE for the OSBA on May 20. Stay tuned for more information on this event.

Jane Gleaves is an associate trial lawyer at Kegler Brown and a key contributor to the firm’s Professional Responsibility practice. She is also a frequent presenter at CLE programs on topics related to professional malpractice, ethics and attorney discipline.

She can be reached at [email protected] or (614) 462-5484.