Kenneth M. Mogill: Legal Ethics and Emergency Lawyering—Effective Representation in the Time of COVID-19

Friday, May 8, 2020

The Michigan Rules of Professional Conduct (MRPC) inform and guide all aspects of our work as lawyers. They identify particular obligations, specific prohibitions, and broad areas where we have discretion as to how to act in our clients’ best interests. Throughout, they reflect the primary policy objective of protecting our clients’ interests in our role as their agents. To meet this goal and be effective agents, we undertake multiple duties, including, inter alia, subject area competence (Rule 1.1), meaningful client communication (Rule 1.4), and deference to clients’ informed decisions regarding the goals of representation (Rule 1.2).

In normal circumstances, the process of furthering these goals is usually straightforward. What about in an emergency, however, when meeting one or more of these obligations is either impossible or would impede your ability to protect the client’s interests? The rules still apply, but do they account for emergency circumstances? Do the rules allow a lawyer to act in an emergency in ways that would otherwise violate ethical norms and, if so, to what extent and why?

The current state of emergency has disrupted the practice of law in many ways, including whether we practice out of an office or from home; whether we meet with clients, witnesses, and others in person or remotely; and how we interact with staff. To the extent that these changes came about abruptly and unexpectedly, adaptation has been, for many lawyers, largely on an emergency basis. The ethics implications of these changes are substantial, but they involve considerations that exist independent of the state of emergency.^[1]

A different set of ethics questions is presented where, as a result of an ongoing emergency, a lawyer needs to act quickly to avoid or reduce serious risk to his or her client, yet the same circumstances that have created the need for immediate action have also made meaningful client communication and thorough investigation of facts virtually impossible. For example, a criminal defense lawyer plans to move for reduction in a client’s bond because of the materially greater risk of coronavirus infection that goes with incarceration, but the lawyer fears that they cannot safely go to the county jail and meet with the client to ensure that the client learns all the relevant facts and wishes to pursue bond reduction. What is the lawyer to do? 

The rules themselves don’t include the word “emergency.” The comments to the Michigan Rules of Professional Conduct refer to “emergency” only once; the comments to American Bar Association Model Rules (on which the Michigan rules are based) refer to “emergency” just twice. No Michigan formal or informal ethics opinion identifies a lawyer’s duties and rights in an ongoing emergency. Nevertheless, several provisions in the rules and comments reflect fundamental policy considerations from which it can reasonably be inferred that a lawyer has an implicit right, if not duty, to take limited, otherwise ethically improper action in an actual emergency when a normal course of action is not possible and unusual steps are reasonably necessary to protect a client’s interests.

In particular, recognition of a right to take otherwise inappropriate action in an emergency or other abnormal circumstance is found in the following provisions: 

• Comment to MRPC 1.1, which provides that “[i]n an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances. . .” (emphasis added);
• ABA Model Rule 1.6(b)(1), which permits a lawyer to reveal otherwise confidential information “to prevent reasonably certain death or substantial bodily harm.” Comment 6 to this rule stresses that the rule “recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat” (emphasis added); and
• MRPC 1.14(a), which provides that “[w]hen a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client” (emphasis added). Comment 3 to the nearly identically worded ABA Model Rule 1.14 notes that the presence of family members at a conference with such a client—participation that would otherwise destroy the applicability of privilege—“generally does not affect the applicability of the attorney-client evidentiary privilege.” Further, Comment 9 to the model rule provides that “[i]n emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm” (emphasis added).^[2]

Taken together, these provisions and comments strongly suggest that the rules implicitly recognize the need for flexibility in an actual emergency while also identifying the limits of that flexibility. That is, the rules are “very pragmatic” in application^[3] and do not elevate form over substance.^[4]

As the coronavirus spread quickly throughout the state, a number of Michigan lawyers—in some cases working in conjunction with local courts and sheriffs’ offices—sought to secure clients’ release from custody due to the greatly increased risk of infection and serious illness or death given the close quarters of a prison or jail where even minimal compliance with public health guidelines may not have been possible.^[5] These lawyers’ challenges and experiences are instructive as to the circumstances in which steps outside the scope of what is normally reasonable can become reasonably necessary in an emergency and, therefore, ethically permissible.

The clients whose release was sought included pretrial detainees who did not have the cash necessary to post bond, individuals serving sentences in a county jail or state prison, and other incarcerated individuals.^[6]

In some of these cases, the client already had counsel; in others, counsel was appointed on an emergency, limited-scope basis. In most of these cases, the very circumstances creating the emergency arguably made it impossible for counsel to meaningfully communicate with their clients before deciding what to file and identifying the information to include in the filing. The same risks that left incarcerated clients more vulnerable to infection increased the risk to lawyers who would otherwise have visited them in custody before filing anything. In many cases, alternative means of communication with the client or client’s family members were limited if not altogether unavailable. Counsel were then left with the unenviable dilemma of choosing between filing a motion without first gathering all the relevant facts and obtaining the client’s approval for the filing and delaying filing until they could communicate meaningfully with their client even though delay likely increased the client’s risk of infection and serious illness or death.

Given the totality of circumstances, this appeared to be the type of situation contemplated by the previously noted language in the rules and comments and, therefore, the type of situation warranting unusual action. To protect clients in these very unusual circumstances, it was reasonable for counsel to proceed with filing as quickly as possible, even if doing so meant possibly not having all the relevant facts, not discussing the filing with the client, and not first obtaining the client’s authorization to file. The circumstances permitted the unusual action for the following reasons: 

• A true emergency existed in which prompt action was reasonably necessary to protect the clients from a substantial risk of serious illness and possible death;
• Counsel’s lack of safe access to clients left clients unable to communicate their desires to counsel in a meaningful manner at a meaningful time;
• Any factual gaps or errors in the motions as filed could promptly be filled in or corrected as necessary once counsel was safely able to communicate with their clients;
• There was an obvious, strong likelihood that the clients would have authorized counsel to proceed with the motions if counsel had been able to communicate with the clients before filing; and
• The intrusion into the clients’ decision-making realm was the least intrusion possible in the circumstances.

Other fact situations will present different needs for quick action that could not otherwise ethically be taken, but these circumstances illustrate both the dilemma lawyers can face in this emergency and the path to navigating one’s way successfully through this particular ethical forest. As noted above, the same considerations that permit these out-of-the-ordinary actions also identify their permissible limits.  

In sum, the policy considerations underlying the rules implicitly permit otherwise improper acts to protect clients’ interests in an emergency and provide a road map for lawyers ethically to protect those interests in an emergency. Actual emergencies are thankfully rare, and circumstances justifying unusual steps by lawyers are, therefore, correspondingly rare.^[7] Where a true emergency exists,^[8] however, a lawyer has the authority to act effectively for the reasons and within the limits discussed above.

Kenneth M. Mogill is an adjunct professor at Wayne State University Law School, where he teaches professional responsibility, and a past chairperson of the State Bar Standing Committee on Professional Ethics. His practice is concentrated in the field of professional ethics and attorney discipline defense. He is a 1971 graduate of the University of Michigan Law School.

Articles that appear on michbar.org do not necessarily reflect the official position of the State Bar of Michigan and their publication does not constitute an endorsement of views which may be expressed.