Legal Ethics in the Time of COVID-19 and Similar Situations

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

The last few months have been a challenge for everyone, personally and professionally. Below are the major areas of ethical con-siderations during pandemics and similar situations.

Competence

In addition to the usual areas of competence, firms must have a plan to keep up with changes and extensions of deadlines, courthouse closures, rescheduling of hearings, and related issues. The duty of competence also extends to technology that has become so necessary now, including video conferences and remote notarization.

Paralegals and attorneys should also keep up with executive orders and other temporary changes in the law and procedures that may affect clients. Now would be a good time to join the relevant section of the State Bar or a similar organization to receive updates on these matters.

Communication

As always, it is important to keep clients reasonably informed. Many firms use their websites and social media to update clients regarding office hours, attorney and staff availability, and how best to reach attorneys and staff, such as email or calls to the office numbers that are forwarded to the responsible person. For some firms, there will be information that applies to many clients such as courthouse closures, exten-sions of deadlines, and information on hearings being held via video conference.

For small and solo firms, it is wise to have an arrangement for other attorneys to assist and a comprehensive succession plan in the event the attorney cannot continue representing clients, whether temporarily or permanently. Plans should include instructions on quickly notifying clients and opposing counsel of the situation.

Confidentiality

Many of us are working from our homes. Unfortunately, that also means it can be more difficult to keep conversations private and to protect confidential hard copies and electronic information. Everyone should try to find a private, quiet place in your home to work and have confidential conversations. And while you may think that it is not important if your spouse, roommate, or teenager has access to your information (hard copy and electronic), it is critical. The ethical standard is not whether the person who may access the information is going to pass along that information to someone else, it is that no unauthorized person should have access to confidential and privileged information. As a further precaution, all smart speakers such as Alexa and Google Assistant should be unplugged or moved into a room far away from your work-space. Smart speakers are always listening and even turning them off is not sufficient.

Supervision

Attorneys must still supervise their staff. Often paralegals must take responsibility for confirming attorneys are reviewing and supervising their work. If everyone in your office is working remotely and the previous procedures involved circulating hard copies of documents, new procedures must be developed. Although many of us are enjoying working from home (and dressing much more casually), we must maintain our commitment to ethical practices, adjusting processes and procedures as necessary. We should also consider this situation an opportunity to learn new technology, embrace new methods of communication, and help our firms become better prepared for unexpected interruptions to the ways we usually offer legal services.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division.  She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.