Ethics in Pandemics: The Lawyer for the (Crisis) Situation

Abstract

Lawyers often respond to client crises. But a client crisis is not necessarily a crisis for the lawyer when the lawyer is competent, prepared, and trained to handle that crisis. More and more, though, lawyers are asked to face novel crises that are so pervasive that they impact the ability of the lawyer to provide competent, effective, and zealous advocacy for her client. Today, lawyers are sheltering-in-place while their clients suffer immense hardship, either in prison or detention where the Coronavirus is spreading like wildfire, or homebound, forced to remain with an abuser. The Model Rules of Professional Conduct provide some limited guidance to lawyers dealing with emergency situations, and there has been some tinkering along the margins of the rules in response to recent crises, particularly as the rules address the unauthorized practice of law in jurisdictions where emergencies arise. Some scholarship addresses how lawyers have dealt with crises in discrete areas, with a great deal of attention being directed toward the national security context in particular. More and more though, lawyers are asked to assist clients in novel and widespread crises that affect many areas of practice, and the Model Rules do not address the ways in which such crises can impact the practice of law more generally. The main approach this Article takes is to assess the extent to which scholarship and the current rules governing the practice of law and their underlying principles account for some of the unique aspects of practice in novel, pervasive crises. To date, legal scholarship has not considered the ways in which what I call crisis lawyering may be a mode of practice many, if not all lawyers, will face throughout the course of their careers. Moreover, one of the purposes of the Model Rules includes providing guidance to lawyers but they also serve as a means by which we can measure lawyer conduct to ensure there is some degree of lawyer accountability to clients, adversaries, the legal system, and the general public. By using the Model Rules as a starting point for the analysis, this Article explores the somewhat disjointed ways in which the rules that govern the practice of law offer guidance to the lawyer facing novel, pervasive crises. It also addresses the needs of lawyers operating in fields where they may confront crisis situations and seeks to recognize that crisis lawyering may be a form of practice that is, itself, trans-substantive, demonstrating distinct similarities across different areas of practice. This Article attempts to address the absence of scholarship addressing crisis lawyering and analyzes the extent to which the current rules governing the practice of law are or are not adequate to the task of providing guidance — and accountability — to lawyers dealing with such situations. It also offers recommendations for how we may consider amendments to those rules to better reflect the needs, interests, and obligations of lawyers dealing with crisis situations so that lawyers may serve their clients better and more effectively when faced with such crises.

Keywords: Legal Ethics, Crisis Lawyering

JEL Classification: KOO, K29, K39, K49