(Originally posted March 24, 2020, updated March 25, 2020)
Ethics and technology: A lawyer’s duties to provide competent and diligent representation continue during these unusual circumstances. (Rules 4-1.1 and 4-1.3). Where lawyers and their staff rely on technology to replace or supplement physical presence or face-to-face communication, lawyers should stay informed about the benefits and risks involved and act accordingly. (See Rule 4-1.1, Comment .) Lawyers and office staff may need a reminder about ethics-based office policies governing confidentiality, particularly where physical and electronic files and communications will be accessed at home. (See Rules 4-1.6, 4-5.1, and 4-5.3). The LEC published an article in the January-February 2020 Journal of The Missouri Bar entitled “The Ethical Implications of Technology in Your Law Practice: Understanding the Rules of Professional Conduct Can Prevent Potential Problems.” Additionally, an Electronic Communications Resources page is available on the LEC website.
Communication: Social distancing and remote working conditions may make it more difficult for lawyers to communicate with clients, but lawyers need to provide adequate communication as required by Rule 4-1.4. If lawyers are working remotely, they should make arrangements to check messages frequently, communicate adequately with office staff about client inquiries, and stay in contact with clients, just as lawyers would if they and their staffs were in their offices.
Calendar management: As courts reschedule matters, lawyers should be sure to keep calendaring systems updated as part of the duty of diligence under Rule 4-1.3 and be sure to communicate to clients changes in the scheduling of their matters per Rule 4-1.4 (Communication).
Mail and deliveries: Lawyers need to have a plan in place to make sure mail and deliveries are received timely.
Preserving confidential information: Supervisory duties may be more difficult to perform when lawyers and staff are working remotely, but lawyers should be aware of their obligations to supervise other lawyers in the firm as well as nonlawyer assistants to ensure their conduct is consistent with professional obligations and to take reasonable remedial action if appropriate. (Rules 4-5.1 and 4-5.3). In the event confidential information is disclosed by a nonlawyer assistant, accidentally or otherwise, Informal Opinion 2017-02 provides guidance.
Trust accounts: Now is the time for lawyers to ensure they have the ability to access client trust accounts electronically. For example, lawyers may wish to explore with their financial institutions the ability to deposit funds electronically in the event drive-through and lobby services are closed. Lawyers must still maintain record keeping in accordance with Rule 4-1.15(f).
Incapacity or quarantine of a lawyer or a nonlawyer assistant: If a lawyer is unable to handle client matters competently, the lawyer must determine whether Rule 4-1.16(a) requires the lawyer to withdraw from the representation or whether other lawyers in the firm who also represent the client are able to handle the matter until the lawyer is able to return. Lawyers should also consider the potential impact of a nonlawyer assistant’s incapacity and make appropriate plans.
Succession planning: Lawyers should remember that part of the duty of diligence under Rule 4-1.3 includes, as described in Comment , the need for a continuation plan in the event of the lawyer’s incapacitation or worse. While a succession plan is needed, remember that lawyers may also consider designating a trustee in accordance with Rule 5.26.
- The Missouri Bar’s Coronavirus Resource Center for Lawyers: https://mobar.org/site/content/Lawyer-Resources/Coronavirus_Resource_Center_for_Lawyers.aspx?WebsiteKey=dd54fe1d-87c8-4d7e-9547-e59fcd729541.
- Missouri Judiciary Responses to Coronavirus (COVID-19): https://www.courts.mo.gov/pandemic/
- Malpractice insurance carriers may be able to provide additional resources.