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Ethical Guidance for Lawyers, COVID-19

Before takeoff, flight attendants instruct that in an emergency, put your own oxygen mask on first, before assisting others. Lawyers are helpers and problem solvers. Never more so than in a time of crisis. Schedule a short burst most days for movement, a home chore, a hobby, and conversation with a friend or loved one. Remember, ER 1.16(a)(2) requires withdrawal when a lawyer’s physical or mental condition materially impairs representation. Follow safety guidelines and prioritize your well-being during this time of heightened anxiety and grief. (Need to talk to someone? Check out the Bar’s Member Assistance Program drop-in coaching sessions.)

You might get sick. Now is the time for contingency planning, especially if you are a solo. Arizona lawyers are required to have a succession plan. (The Bar’s Practice 2.0 can help.) Be sure to discuss your plan with your staff. Related, make a backup plan for illness/unavailability of any staff who assist with billing and accounts.

Proactively contact clients and make sure they know how to reach you. Communicate any altered case plans and scheduling. Consider and discuss any fee impact. Ask clients about their health and discuss contingencies if client becomes ill or otherwise unreachable. Update your outgoing voicemail, website, and any automated email messages to 1) reflect your current work set-up and 2) set expectations for your response time. Arrange for mail pick-up or reroute and scanning.

Ensure your remote workspace, system and practices are secure and maintain the confidentiality of client information and communications. This may require consulting a competent technology expert. (The Bar’s Practice 2.0 can also help.) Remember to also guide and supervise teleworking staff with respect to confidentiality of client information.

Confirm your conflicts checking system works remotely, including review with teleworking staff. Resist the temptation to give legal advice on the fly, without checking conflicts.

Develop a system to track daily changes in rules, and emergency orders, from the courts and administrative agencies, particularly related to deadlines/statutes of limitations, appearances, e-filing, service, and affirmation/notary requirements. (Tip: Monitor the State Bar website’s Coronavirus Information Center.) Update your calendaring and task systems accordingly.

Liberally exercise professional courtesy and discretion with respect to appearances, continuances, service, etc. Avoid harsh practices that increase stress or risk for others. ER 8.4(d). On the other hand, do not use the pandemic to excuse inattention or lack of diligence.

Make use of collaborative tools like Microsoft Teams that facilitate supervision of lawyers and staff you employ.

Check in with your malpractice carrier – it may offer helpful guidance regarding best practices and common pitfalls during crisis.

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