Preparing for a Pandemic: Practical Steps and Ethical Responsibilities

It is probably just a matter of time before Texas joins the list of states who are declaring a state of emergency due to the number of confirmed cases of the novel coronavirus known as “Covid -19” (the Virus).

Even so, this is no time to panic–it is time to prepare.

Prepare to protect your practice so that you can continue your work for your clients as seamlessly as possible no matter what happens—and do so with minimal risk of violating your ethical duties.

This is exactly what the United States District Court Chief District Judge Rodney Gilstrap* did when he issued a new Standing Order for the Eastern District of Texas last week. Judge Gilstrap cited the court’s duty to ensure (and maintain) “the just and speedy disposition of proceedings” and its duty to protect those who work for and appear before the court and the general public. The order requires parties involved in a case to give notice to the other parties if they may have contracted or been exposed to the Virus and sets out a number of alternative procedures for continuing the progress of the case while protecting those involved in the case from possible exposure.

The Texas Supreme Court is preparing as well—but in a different way. The Court is even now appointing Judges to enforce a possible quarantine due to the Virus.** The goal, it seems, is to have a large number of Judges who have experience in quarantine law ready and available 24/7 to respond to requests from any city, county or district attorney or the AG to enforce a quarantine. The law regarding communicable diseases is right there in the Texas Health and Safety Code Chapter 81, which includes criminal penalties for not cooperating in any investigation or for concealing exposure to communicable disease, among other things. Because quarantines involve highly communicable diseases, part of the Court’s planning includes making sure that these Judges have breathing masks available as well as the technology they need to hold remote hearings to protect themselves and others from contracting or spreading the Virus.

So what should you be doing to protect yourself, your practice, and the public? Consider the advice given and issues raised in the 2018 ABA Ethics Opinion number 482. The Opinion starts by observing that lawyers have various ethical obligations implicated by a disaster, including the obligations to communicate with clients and to protect client funds and documents. It offers this advice about preparing to meet these obligations BEFORE disaster strikes:

  • Make sure you have policies and procedures in place to safeguard client property and funds as well as access to those funds. If you can’t go to the bank are you prepared to receive and disburse client trust funds? Are your delivery services prepared for an emergency?
  • Make sure you have the means to work, keep clients informed about how they can reach you, and then have a way to “meet” even if you cannot do so in person. Many businesses are already arranging for employees to work from home. If your practice can’t be managed from home it’s time to get the appropriate technologies in place, including any necessary cloud and video conferencing services. The “paperless office” you and your partners have talked about may be the only kind of office that works.
  • Don’t forget billing – you don’t want to have everything set up to do the work and then discover you don’t have the means to get paid for your work.
  • Most important, don’t forget insurance. The costs of fulfilling your obligations may be high, and the obligations don’t disappear just because the money isn’t available.

Lawyers’ duties to their clients don’t go away in a disaster; like the courts, lawyers should be preparing now for the disruptions that may come with this disaster or the next.

*Chief Judge of the U.S. District Court for the Eastern District of Texas—Marshall Division
**See the March 6, 2020 article in the Austin American-Statesman