As we navigate the challenges of representing clients during the COVID-19 pandemic, we need to remain mindful of our obligations under the California Rules of Professional Conduct (CRPC). A recent Legal Ethics Corner (To Be Diligent, BASF Bulletin, May 2020) focused on our duty of diligence (CRPC 1.3), which requires lawyers to continue to represent clients without undue delay despite shelter-in-place restrictions and the closure or limited hours of courts, recorder’s offices, and businesses. Here are some other rules to consider.
The duty of competence requires lawyers to “apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance” of the legal service. CRPC 1.1(b). Implicit in this rule is the need to understand technology enough to continue applying our learning and skill efficiently and securely, using electronic communications, video conferencing, remote access to client files and correspondence, and e-filing. In fact, our State Bar has proposed a new comment to CRPC 1.1, specifying that competence includes keeping abreast of changes regarding relevant technology. Moreover, the duties of competence and diligence are generally not excused due to personal issues, such as those that might arise from school closures, lack of child care, or responsibilities for family members. See Smith v. State Bar (1985) 38 Cal.3d 525, 540 (decided under former rules). Bar association websites offer resources to help lawyers handle the stress that may occur in juggling these obligations. If your ability to represent a client is becoming compromised, take appropriate steps to protect the client’s interests.
Lawyers have an additional duty to “keep the client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.” CRPC 1.4(a)(3); see also CRPC 1.4(a)(1)-(2), 1.4.1. Apprise clients of the status of the representation and the impact of pandemic-related orders, provide answers and materials as they reasonably request, disclose restrictions on your ability to represent them if warranted, let them know how to communicate with you if your office is closed, and confirm how to best contact them. As workplaces and courthouses reopen, keep clients reasonably informed of effects on the representation.
The duty to keep client matters confidential also warrants attention. CRPC 1.6. Even when working remotely, a lawyer must act reasonably to safeguard communications and records, prevent employees and others from disclosing or using confidential information, and maintain the security of client funds and property (CRPC 1.15). If you delegate work to a lawyer or non-lawyer in your firm, take reasonable steps to ensure they comply with ethical rules and fulfill their obligations. CRPC 5.1, 5.3.
As lawyers, we can help our clients and our community make it through this challenging season. And we must do so ethically.
About the Author:
Carl W. Chamberlin is an attorney, adjunct professor, and Vice-Chair of the BASF Legal Ethics Committee. The views expressed in this article are his own.