Monday, March 16, 2020
We're all making necessary and difficult adjustments to clinical teaching and practice. I met my Community Justice Clinic seminar remotely today for the first time; my students are scattered. The beauty of clinics is that everything is a teaching moment as we prepare for practice. I started my class today with a long discussion on lawyers' duties to clients when we have conflicts and crises, whether a global pandemic or really bad traffic.
This is not revolutionary or groundbreaking, but here I share my general notes that guided our conversation today. We shared more stories and questions and discussed other situations and scenarios, but this was my scaffold for the class. I hope this may be helpful.
Lawyering During Disruption
Last Year: Woolsey Fire.
This Year: COVID-19 Pandemic response.
Other scenarios -
Your own sickness.
Personal scheduling conflicts.
Death in the family.
You have a hearing set for a client tomorrow. Today you get sick and are sure you have the flu; tomorrow it’ll be worse. You’ll be contagious. Do you have to attend and handle the hearing for the client?
What basic rule governs this?
For California, note “reasonable diligence” and the other qualifiers.
Some scenarios from my Ethical Lawyering class, MPRE style:
Scarlett is a young associate at a mid-sized law firm. She is very talented and hard-working and makes it a practice never to turn down assignments from partners. Three partners have come to rely on her for many projects. Melanie asks her to handle document review and discovery for her mass-tort, pharmaceutical cases. Rhett asks her to work on research and drafting for his appellate practice. Ashley has asked her to cover depositions in his thriving medical malpractice work. One day, she has a discovery hearing scheduled for 9:00 in Pasadena for Melanie and a deposition scheduled at 12:00 in Encino for Ashley. She thinks she can make it and doesn’t expect the hearing to be a problem, but she is wrong. The Magistrate does not convene the hearing until 9:45, and it takes an hour to sort through all the objections. The 101 is slammed, and Waze says it will take two hours for her to get to the deposition. She doesn’t want to admit defeat or appear unprepared, so she takes surface streets to try to race to the deposition. She gets stuck in traffic near downtown and arrives at the deposition so late that everyone has left.
Has Scarlett violated Rule 1.3?
A. No, because the court is out of her control.
B. No, because traffic is unpredictable in Los Angeles.
C. No, because her supervising attorneys put her in an untenable situation by their lack of coordination and poor management.
D. Yes, because she did not make alternative arrangements for the deposition.
Charles Wallace is a sole practitioner. He employs one assistant, Denny, and one paralegal, Calvin. Charles Wallace handles a variety of matters, from wills and trusts to DUI defense and divorces. At forty years old, his office is profitable, and at any given week in a year, he has 200 paying or retained clients, and he has approximately 30 to 40 active cases. It’s busy, but his firm has a good system to handle it all. Last week, Charles Wallace had a heart attack that killed him almost immediately. He never gained consciousness before he died, so he missed several hearings and client appointments.
Has Charles Wallace violated Rule 1.3?
A. No, because his estate cannot practice law.
B. No, because his staff could communicate the sad news to his clients.
C. Yes, unless he designated another lawyer to handle his client’s business in the event of his death.
D. Yes, unless he was able to notify his clients before he died.
Let’s establish some principles:
When do our ethical duties begin with clients?
Do emergencies, conflicts, sickness, disasters, or crises suspend our ethical duties to clients?
Is this fair? Does it matter if it’s not?
How long do ethical duties survive to clients?
What are the duties most likely to be threatened or challenged by a disruption?
What are the exceptions to ethical duties we owe to clients?
With principles established, if disasters and disruptions are inevitable, if we do not know for whom the bell tolls, how should we react when they happen to fulfill our obligations to clients?
What is the worst option? (Abandoning the client, to their prejudice.)
What is the best option? (Being prepared with good systems so that no crisis is a surprise or shock to practice.)
If the conflict or problem is actually, literally unavoidable, what should you do as soon you can act?
(Alert the client. Alert the court. Communicate. Ask for help (coverage, continuance, extensions, substitutions))
How can you temper the harm to your client? (Communicate. Take all the blame coming to you. Avoid prejudice to the client.)
How can you avoid the crisis of a disruption? (Have systems and options ready. Don’t take on more than you and your systems can handle. Operate with margins. Have backup and help available. (And lend help when you can.))
Apply these ideas to current practice in the clinic, to our clients.
Do all you can to avoid harm and prejudice to clients to whom you owe duties and who trust you with their lives, liberty, fortunes, families.
Duties to clients come first, but client preferences and convenience do not necessarily come first.
Communicate (more than you think you may need to). With clients, partners, courts, opponents, others as necessary.
Be prepared in advance by building resilient systems and partnerships.
Work with margins.
Triage and prioritize.
Ask for help.