Keep Calm and Carry On: Ethics in a Time of Stress

For many of us, our practices take us into the lives of our clients at times of great stress. Whether it is criminal trouble, professional licensing trouble, matrimonial trouble, or business trouble, legal trouble is painful and all-consuming. Guiding clients through these troubled waters to land, at least relatively safely, is one of the many rewards of a fulfilling law practice.          

             One thing I have learned is that, for both the lawyer and the client, the beginning of a high-stakes representation is the hardest.  In the very first meeting, your client is being eaten up by the uncertainty of the future: s/he wants to know what will happen, what is the worst case scenario, what is the best case scenario, how will you avoid the former and achieve the latter. And the truth is, in the beginning, you do not know. And you tell your client to slow down, take things one step at a time, have a little faith, a little patience and with a little luck things will fall into place as best as they can. 

             Another thing I have learned from my many years of representing clients at a low point in their lives is that this is the time when other things can go wrong – a bad fall, a fender-bender, a missed deadline at work  – because your client is distracted by their anxiety. The distraction created by stress is a danger in itself, one that we all need to be aware of now.  As all of us are going through the unprecedented stress of the Covid-19 pandemic, with the fear and uncertainty of what lies ahead, we need to focus on taking care of what is in our control in our lives and our practices, especially solo practitioners who lack the infrastructure of  a big firm to support them. Here are five suggestions for getting through without creating ethical issues in your practices:

  1. If you are a solo: get a buddy. Find another solo in your specialty who can cover for you or help you get continuances if you need to be quarantined.  This is a time when the friendships you have made in bar associations and on listservs will be instrumental in helping you find the assistance you need.  
  • Check in with your IT support to make sure that you are set to work securely at home. Do not use an unsecured internet connection; make sure that your VPN is on. Also, just as you have stocked up on food, ensure that your home office is stocked with any supplies you need, including printer paper etc.
  • Calendar and client management.  Spend a few minutes looking at your client list and your calendar at least twice a week to make sure nothing falls through the cracks. Are there matters on your calendar that are likely to be disrupted by the pandemic? If so, let your clients know sooner, rather than later, that this might be the case.  This is also a good time to reach out to your clients and let them know that you are available to assist them as they are dealing with the stress and consequences of this unprecedented and historical event.
  • Many CLE courses have been cancelled and are only being conducted through webinars. The April 30th deadline is approaching and you need to get your CLE credits. I predict that the Court will liberalize the restriction on distance learning, but right now only 6 of the required 12 credits, including 2 ethics credits, may be taken on-line.
  • While distracted by the difficulties and uncertainties of the current situation, be extra mindful in your attention to details and be especially careful sending emails. Hitting the send button can be the most dangerous thing you do each day! Every sent email is gone forever and can be forwarded endlessly. This might be a good time to turn off the auto-complete function in your email program. See https://www.howtogeek.com/366344/how-to-disable-or-clear-the-auto-complete-feature-in-outlook/.

             In fact, in recognition of some of the risks created by emails, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility recently issued Formal Opinion 2020-100 on “Ethical Considerations Relating to Email Communications Involving Opposing Counsel and Clients.” The Opinion discusses the risks involved in putting your client on the cc or bcc line when you are in communication with others involved in a matter. The Opinion discusses the risks that arise from the inclusion of a client on an email chain, including the risk that the client will respond and reveal confidential information and the risk that the opposing attorney takes if s/he includes the client in a response email. There is authority to support a concern that the opposing attorney risks violating the “no contact” rule by responding to all. See Pennsylvania Rule of Professional Conduct 4.2 (“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented.”). My advice on this is NEVER include a client on a cc or bcc line with any third party who potentially vitiates the attorney-client privilege, especially an adversary. (For in-house counsel, this is especially tricky, as I discussed in an earlier column’s analysis of Bousamra v. Excela Health, 178 A. 3d 1079 (2018). https://www.law.com/thelegalintelligencer/2019/06/20/pa-justices-establish-new-test-for-work-product-protection/ ). Any email that your client needs to see can be forwarded in a private email discussion.

             There is no minimizing or ignoring the effect this pandemic is having on our profession, our society and our planet. As lawyers, we must protect our clients, our practices and ourselves. I close by reminding everyone that, when the stress is overwhelming, help is a phone call away. Reach out to the folks at Lawyers Concerned for Lawyers at 888-999-1941. They are there every day all day.

             Working together, supporting each other, reaching out for help and being extra cautious – we will get through this trying time. And wash your hands!

Ellen C. Brotman, of BrotmanLaw in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics. 

Reprinted with permission from the March 16, 2020 issue of The Legal Intelligencer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

You can also find this article, as published, here.

With over 25+ years experience, Ellen C. Brotman began her career as a law clerk in the United States District Court, Southern District of New York. She has served as an Assistant Federal Defender in Philadelphia, PA and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics. She has defended a wide variety of high-profile criminal cases, including political and public corruption, securities fraud, tax fraud, money laundering, currency structuring and other white-collar crimes involving complex trial, sentencing and appellate issues. Ms. Brotman also has extensive experience representing lawyers before the Disciplinary Board of Pennsylvania. She has been recognized as a Best Lawyer and SuperLawyer since 2007 in the area of criminal defense and has served on the boards of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers. She is the founder and owner of BrotmanLaw, Philadelphia, PA.

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