Ethical Considerations for North Carolina Litigators During COVID-19

By Amy Richardson and Marilyn Forbes

COVID-19 (coronavirus) has created uncertainty in all areas including in our professional lives. The following are a few ethical considerations that litigators should keep in mind during this time.

COMMUNICATION: Make sure to update and timely respond to your clients. North Carolina Rule of Professional Conduct 1.4 governs communications between lawyers and their clients. Rule 1.4 requires, among other things, that lawyers keep their clients “reasonably informed about the status of the matter.” Clients with pending matters may be concerned about the impact of Chief Justice Beasley’s March 13, 2020 Order on their particular case. Lawyers with cases impacted by the Order should provide guidance to their clients on the current impact and potential impact of the matter. It is appropriate to tell your clients that things are in flux, but that you are monitoring developments.

DILIGENCE: Clients might reach out to you before you have a chance to update them or have follow-up questions. North Carolina Rule of Professional Conduct 1.3 requires lawyers act with “reasonable diligence and promptness in representing a client.” In our experience, informed clients are usually happy clients. A quick response to concerns and questions also helps clients feel more comfortable.

CALENDARS: You should carefully watch and manage your calendar, especially if working from home and without usual staff support. One of the most common sources of malpractice claims are missed deadlines. Given the general stress of our nation and families as well as uncertainty from changing rules from courthouse scheduling, it would be easy to miss a deadline. Take time to understand and confirm all your pending deadlines. If you and/or your support staff decide to work remotely make sure that you understand how any system you use for deadline monitoring will work in that setting. If you rely on support staff to handle deadlines, make sure you have a plan in place on how to handle those deadlines if someone is out for sick leave.

TECHNOLOGICAL COMPETENCE:  North Carolina Rule of Professional Conduct 1.1 requires competence. Comment 8 specifies that in addition to keeping up with changes in the law and its practice, we must also be competent in the use of “technology relevant to the lawyer’s practice.” For those of us who began practicing before laptops and cellphones, and those who are accustomed to relying on superb support staff for many of our daily tech issues, this requirement for personal competence may be all the more critical when working remotely without usual support.

CONFIDENTIALITY: Be mindful and direct your staff to safeguard client information even when working remotely or teleworking. North Carolina Rule of Professional Conduct 1.6 provides that “[a] lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent.” This includes the inadvertent disclosure of information due to technical issues or the electronic transfer of information during telework. Every lawyer has a different approach to technology. Safeguarding, while specific to each of lawyer’s approach and system, is ethically required.