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NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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NYC Bar On the Ethics Lawyers Appearing in Court During the Pandemic

In October, I wrote about an opinion issued by the New York State Bar that addressed the ethical issues presented when a lawyer sought to withdraw as counsel due to health-related concerns regarding in-person court appearances during the pandemic. As I reported in my article, the New York State Bar Association’s Committee on Professional Ethics concluded that an attorney may indeed withdraw from representation due to COVID19-related concerns if the attorney obtains permission from the court.

Now, less than two months later, another New York ethics committee has weighed in on a similar issue. In Formal Opinion 2020-5, the Professional Ethics Committee of the New York City Bar Association considered the following question: “Whether a lawyer’s health concerns regarding appearing in court in person during a pandemic can create a conflict of interest requiring withdrawal from the representation.”

At the outset, the Committee noted that the existence of the pandemic, in and of itself, provides insufficient grounds to permit an attorney to withdraw from representation. The committee explained that there are often options to appear virtually on behalf of a client and even when in-person appearances are mandated, courts are often able to “implement adequate health and safety protocols under which a reasonable lawyer would feel comfortable appearing in person.”

That being said, the Committee acknowledged that as a result of the severity of the pandemic, some lawyers could have a reasonable fear for their health and safety, which could in turn create a conflict of interest that would compromise their ability to effectively represent their clients. The Committee explained that health concerns could cause attorneys to: 1) request unnecessary adjournments to the detriment of their clients , 2) refrain from filing motions in an effort to avoid an in-person court appearance, or 3) take other actions the case in order to move the case along that could have negative consequences for their clients.

The Committee noted that in many cases, either the safety precautions taken by courts or the virtual appearance options offered will be sufficient to assuage an attorney. However, according to the Committee “this must be evaluated on a case-by-case basis and will depend on the risks to the lawyer and the reasonably available options for continuing with the representation” and that in some cases “a lawyer who may suffer from preexisting health conditions or live in a household with others who are susceptible to infection could reasonably believe that the heightened fear of infection would affect the lawyer’s ability to competently and diligently represent the client.”

Should that be the case, then a legitimate conflict of interest may exist. According to the Committee, if that conflict is not otherwise waivable and legitimate health concerns make it “impossible for the lawyer to provide competent and diligent representation,” then the lawyer may withdraw as counsel. Of note is that while the Committee acknowledged that it reached a conclusion similar to that of the New York State Bar Association, it did so for different reasons: “(T)his Opinion analyzes whether a lawyer must withdraw from the representation based a conflict of interest whereas Opinion 1203 analyzes permissive withdrawal under Rule 1.16(c).” 

So if you’re a New York lawyer who is understandably concerned about in-person court appearances at a time when COVID-19 continues to surge across the state, you now have two different ethics opinions in your corner should you decide that withdrawal from representation is the best path forward. Notably, many courts have already canceled most in-court appearances, and other may soon follow, so this may be a moot issue. But in the event it’s not, you’ve now got two paths available to you that have received the ethical stamp of approval.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.