Legal ethics

Some different COVID news.

It is safe to say, at this point, that most of the United States, and particularly southern states such as mine, are treating the pandemic as being over. Whether it actually is or is not remains to be seen. If it is over, its lasting effects will certainly live on.

This post isn’t exactly about any of that though. A few months ago, I recall doing a telephone interview with a reporter that was focused on trends in discipline. I recall discussing my best guesses for what we might start seeing and how the pandemic would likely be central to that. A different part of my conversation fed into the actual article, so I’m now having to work from the most ephemeral of sources — pandemic memory (pandemory?) but my recollection is that I talked about two possible things likely to occur. One was an increase in disciplinary complaints of the potentially legitimate variety given the strains experienced by lawyers in trying to pivot to living at work, coping with the stress of navigating a pandemic, and potential for missing deadlines and other failures that could coalesce around the struggle. The other was an increase in potential disciplinary complaints of a less legitimate variety where clients try to blame their lawyers for things that were actually being caused by the pandemic itself, including delays in court proceedings, court rulings, and other similar delays in transactional settings. I also mentioned, of course, that even those less legitimate complaints could take hold if the lawyers involved had been less than diligent in communicating with their clients along the way.

What I didn’t say anything about in that conversation was whether lawyers might catch any breaks with respect to errors that they make during the pandemic simply because the errors occurred, you know, while trying to get through a pandemic.

With this post, I’d just like to highlight the surprising fact that there are at least two such incidents that have made it onto my radar screen. Two is certainly an insufficient sample size to claim any sort of trend but discussing them together is still worthwhile.

The first involves a clear example of a disciplinary body using the pandemic itself as a mitigating factor in determining an appropriate level of discipline for a D.C. lawyer. Because it came to my attention through Mike Frisch’s site, and because I have been awful in the past of saying that out loud when it is true, I will simply point you to his post and excerpt it below:

We recognize that much of 2020 was a particularly challenging time when COVID related deaths, illnesses, lockdowns, and social restrictions were at their peak without an end in sight. Therefore, we also considered your reaction to the pandemic as a mitigating factor in the context of your misconduct. Our consideration of this factor is heavily influenced by the timing and nature of your misconduct, coupled with the proactive remedial measures you took to cope better with the pandemic. 

The other involves something that seems much more extraordinary… a Rhode Island court forgiving a lawyer for missing a statute of limitations by a couple of days. The possibility of lawyers missing deadlines because of COVID was something I discussed with the reporter; particularity issues associated with trying to keep track of when time was running or tolled in states like Tennessee where our Supreme Court entered and then extended emergency orders that tolled certain deadlines but did not toll others. The possibility that courts might just exercise judicial power to simply give a free pass for missing a statute of limitations though was not something I envisioned as possible.

In an attempt to try to avoid the doghouse I’ve placed myself in as to Mike Frisch, I will clearly state that I only heard about the Rhode Island ruling because of an email alert from the Hinshaw law firm. You can read their content about that decision here.