No One is Immune to COVID-19's Professionalism Challenges
To state the obvious, 2020 was an unusual year.
We are living in unprecedented times as a global pandemic creates new normal in everyone’s daily lives. Like most professionals, today’s lawyers face many challenges in maintaining professionalism while working during the era of COVID-19. From where they practice to how they practice, lawyers have been forced to make changes that promote safety while maintaining professionalism and productivity.
At the start of the pandemic, many offices in structed their lawyers to work from home, which posed its own concerns surrounding productivity as many lawyers scrambled to set up home offices with adequate technology or juggle their schedules with their children’s online schooling.
Additionally, lawyers have needed to change the way they communicate with their clients, as face-to-face discussions are no longer the norm. Even courtroom proceedings have become virtual events, requiring lawyers to advocate for their clients via telephonic or video conferencing. To many, these changes are not inherently negative and may very well be embraced long after the COVID-19 outbreak has been contained. Aside from the benefit of avoiding the spread of the virus, working from home may alleviate the stress often felt in an office, and meeting with a client or attending a court proceeding via a video conference saves the time and expense of travel.
However, these changes also raise concerns about diminished professionalism. With the risks of increased distractions while working from home, inadequate communication with clients, and a lack of formality with virtual court proceedings, lawyers should be mindful of The Florida Bar’s Rules of Professional Conduct when modifying their practices to ensure that they maintain professionalism.
When the nation shut down in March, many lawyers began to work from home. While working from home offers many advantages, it tends to come with several distractions. On top of concerns of the pandemic, being surrounded by family, pets, or the allure of the television can be distracting and threaten anyone’s productivity and efficiency. Rule 4-1.3 of the Rules of Professional Conduct, however, requires that lawyers represent their clients with reasonable diligence, even in the face of personal inconvenience. Diligence demands zealous advocacy, competence, and timeliness.
Though circumstances have understandably shifted due to COVID-19’s effects, lawyers are still required to zealously advocate on their client’s behalf. Even if working from the comfort of the living room, a lawyer should handle a client’s matter with the passion and importance it is owed. In the same vein, diligence requires that lawyers ensure their working conditions and workloads allow them to handle each case competently. Lawyers need to be honest with themselves about their ability to handle cases if working from home has negatively impacted their productivity. It is better to advise a potential client to seek representation from a different lawyer than to take on a case knowing one does not have the present ability to competently handle it.
Finally, diligence necessitates timeliness. As the comment to rule 4.1-3 notes, procrastination may be the most resented professionalism faux pas. Though working from home during the time of COVID-19 certainly presents challenges and entails distractions, a lawyer must remain diligent in continuing to meet deadlines and responding to clients in a timely manner. In addition to the professionalism challenges that come with working remotely, COVID-19 has caused issues with how lawyers communicate with their clients. Lawyers and clients who prefer to meet in person at the lawyer’s office may now be limited to phone calls, emails, and perhaps video conference calls. This change can be especially challenging when working with clients who do not have access to the requisite technology. This change poses even more of a challenge to lawyers whose clients are incarcerated, as the Florida Department of Corrections has encouraged lawyers to refrain from in-person visitation when possible.[i] Despite these challenges, rule 4-1.4 of the Professional Rules of Conduct provides that lawyers must engage in reasonable communication with their clients to allow for effective participation in their cases.
Under rule 4-1.4, lawyers must provide clients with prompt and adequate communication. If a lawyer knows his or her client is not the most technologically savvy or lacks the technology altogether, the lawyer may best ensure prompt communication by relying on phone calls rather than emails or video conferences. Relatedly, if a client is incarcerated, the lawyer can ensure an inmate has access to counsel by scheduling regular and predetermined times to check in and discuss the client’s case over the phone.
Regardless of whether a lawyer and client communicate through phone calls, emails, or video conferences, the communication needs to adequately inform the client of the status of his or her case. Though it may be easier to explain the developments of a case in person, lawyers’ conversations with clients can and should remain thorough and informative no matter the medium used. Moreover, with increased reliance on remote forms of communication, confidentiality as described in rule 4-1.6 remains a paramount concern. Therefore, in utilizing phones, emails, and new virtual platforms to remain in touch with clients, lawyers must make reasonable efforts to prevent the disclosure of any confidential information to third parties. One possible measure to advance this interest is avoiding the use of public internet connections when emailing or video conferencing with a client. Ultimately, a lawyer must provide prompt, adequate, and confidential communications, irrespective of that communication’s form.
Remote communications are not limited to conversations between lawyers and clients, as many Florida lawyers are now remotely advocating before courts. In an effort to ensure the state’s judicial system does not become backlogged with stalled cases during the pandemic, Florida courts have come to rely on telephonic and video conferencing to conduct hearings, oral arguments, and, in some cases, trials.[ii] Virtual proceedings are undoubtedly beneficial; lawyers, clients, and witnesses avoid the need to travel and reduce the chance of contracting or spreading COVID-19, all while proceedings continue to take place in a timely, efficient manner. In fact, this widespread use of telephonic and video conferencing may become the preferred mode of advocacy for some judges and lawyers even after courtroom restrictions are lifted.
As Florida courts continue to handle many proceedings virtually, lawyers should try to maintain the same sense of professionalism over the phone or through video that is expected in the courtroom. As noted in the preamble of the Rules of Professional Conduct, a lawyer should act with respect towards judges and other lawyers. Though hearings conducted through video conferences, for example, inherently feel less formal than in-person proceedings, lawyers should continue to look and act as professional as they would for a court hearing. One Broward County circuit judge expressed his frustration with attorneys lacking professionalism during virtual proceedings, revealing that one male attorney attended a virtual hearing before his court without a shirt while another female attorney tuned in from her bed.[iii] Lawyers should retain the proper dress code and remain cognizant of their tone, body language, and camera backgrounds when advocating in such settings. If a lawyer plans on presenting an oral argument from a cluttered or distracting at-home workspace, utilizing one of the basic virtual backgrounds offered by many video conferencing platforms can help the court to focus on the lawyer’s argument, not his or her surroundings. Further, rule 4-3.5 of the Rules of Professional Conduct explains a lawyer’s duty of acting with decorum before a court. It goes without saying that obstreperous conduct and other intentional disruptions are prohibited in virtual proceedings just as they are in in-person dealings before a court. Respecting the formality of judicial proceedings, even when conducted remotely, helps a lawyer retain his or her professional image while advocating in the midst of COVID-19.
Though practicing law during a pandemic was unlikely to have been any Florida lawyer’s expectation before 2020, it is now the reality for the foreseeable future. Despite the switch to working from home, an absence of in-person communications, and the introduction of virtual courtroom proceedings, professionalism remains an important aspect of practicing law. The Florida Bar’s Rules of Professional Conduct offer necessary guidance to lawyers during this unprecedented time. As lawyers continue to adjust their practices in response to concerns of COVID-19, ensuring professionalism requires observance of reasonable diligence, communication, and decorum. With an awareness and respect for these rules, professionalism does not need to suffer during this pandemic.
[i] See Press Release, Florida Department of Corrections, FDC Extends Visitation Suspension at Correctional Institutions Statewide (Aug. 18, 2020).
[ii] Five Trial-Court Circuits Chosen for “Virtual” Civil Jury Trial Pilot Program Due to Pandemic, Fla. Sup. Ct. (June 3, 2020).
[iii] C. Isaiah Smalls II, Broward Judge Tells Lawyers to Get Out of Bed and Wear a Shirt for Zoom Hearings, Miami Herald (Apr. 13, 2020, 4:59 PM).