Volume 34

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

by Raymond H. Brescia

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 those lawyers struggle to provide competent, effective, and zealous service to their clients due to those crises. In the midst of the COVID-19 pandemic, lawyers sheltered in place while their clients suffered immense hardship, for example, in prison or detention where the virus spread 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 those rules address the unauthorized practice of law in jurisdictions where emergencies arise. 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. 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 remedy the absence of scholarship addressing crisis lawyering by analyzing 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.

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