By Whittney Dunn, Risk Manager
Now that warmer temperatures have finally reached the Midwest, many lawyers may begin to contemplate taking time away from work to enjoy the beautiful weather with family and friends. In fact, numerous studies have shown that vacation time can decrease lawyer stress and minimize burnout, thereby boosting productivity and effectiveness when the lawyer returns to the office.
But every good vacation requires planning to ensure that your ethical duties under the rules of professional conduct continue to be met even in your absence. Just a few of the rules to keep in mind when planning for vacation are listed below:
Rule 1.3 – Diligence
Rule 1.4 – Communication
Rule 1.6 – Confidentiality of Information
You should also consider fee division and client consent issues if you plan to bring in another attorney to handle brief, non-substantive court matters during your out-of-office period. These “convenience appearances” can also involve a number of issues under the ethics rules.
Diligence and Communication Issues
The best way to avoid missed deadlines and unintended delays during your time away from the office is to ensure compliance with Rule 1.4, which requires that you “keep the client reasonably informed about the status of the matter” and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” See Rule 1.4(a)(1) and 1.4(b). Your active clients should be advised of your limited availability, and you should advise them of who to contact with emergency issues while you are away.
Important considerations regarding diligence and communication during your vacation:
- Recognize your duty under Rule 1.4(a)(2) to “promptly comply with reasonable requests for information.” Comment  to the rule further explains that if a prompt response is not feasible, you should have someone in the office acknowledge receipt of the request and advise the client when a response may be expected.
- Work with other attorneys in your office to determine who will answer which types of questions for which clients. Advise the clients of the attorneys in your firm who will be assisting them while you are away.
- If you are a solo practitioner, work with your staff to ensure client communications are promptly acknowledged. Determine what will constitute an “emergency” such that you should be contacted while away versus a matter that can wait for your return and train your staff accordingly.
- Provide notice to active clients of your pending absence. Tell them when and for how long you will be away to properly set their expectations regarding your availability. Also provide the client with contact options if they need to contact someone during that time (e.g. another attorney in your firm, your support staff, another attorney outside of your firm who has agreed to take certain matters on an emergency basis, etc.). If you do plan to utilize the services of an attorney outside of your firm, ensure the co-counsel relationship will comply with the rules of professional conduct. See below for more information on that issue.
- Notify opposing counsel/parties and the court of your absence in pending litigation matters to avoid hearings or deadlines being scheduled while you are away.
Rule 1.6 governs the confidentiality of client information and your duty to safeguard that information on behalf of your client. Specifically, the rules state that “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” See Rule 1.6(c). The requirement of confidentiality has very few exceptions and should be carefully considered when working remotely or traveling with confidential client information on a mobile device.
If you are working remotely on a client matter, ensure you are taking the following precautions:
- Utilize only secure connections to view, receive or transmit information related to the representation.
- Ensure your device is password protected, and lock the device any time you are not using it.
- Conduct phone calls in a private place to the extent possible. If phone calls must be taken in public, take care not to disclose client identities or proprietary information. Advise the client that you are speaking from a public place, and ask the client if she would prefer to have the discussion at another time.
Note that this list includes the bare minimum precautions that should be taken when working on client matters in public and/or outside of the office. Certain client matters or types of sensitive information may require additional precautions to comply with your duties under Rule 1.6. Before taking any steps that might reveal confidential client information, review the rule and its comments, particularly comments  and  relating to acting competently to preserve confidentiality.
If your travel involves going near or over a U.S. border, you should be aware that U.S. border patrol has extremely broad authority to conduct warrantless searches and seizures. These seizures can include your mobile devices. See 8 CFR 287 (a)(3). In order to comply with your duty to prevent the unauthorized disclosure of or access to your client’s confidential information, you should take precautions to not carry such information across a border absent the professional need to do so. Further, you should refrain from taking any client information which is highly sensitive unless the professional need to do so is especially compelling. For further information relating to this risk and reasonable precautions, Formal Opinion 2017-5 from the New York City Bar Association is particularly helpful.
Convenience Appearance and Co-Counsel Issues
It is very common in the legal profession to hire other attorneys to make appearances in small court matters where the lawyer has a scheduling conflict. These types of appearances are frequently used for motions for continuance, simple trial settings or similarly quick hearings which rarely have a substantive effect on the case. These types of brief appearances are not prohibited by the rules of professional conduct; however, in practice, they are rarely done in a way that complies with the requirements of the rules. Utilizing your lawyer friends to help out with these matters while you are on vacation must be done with care and with full consent of your client. Unfortunately, there is not a personal convenience exception to the rules of professional conduct.
The Comments to Rule 1.1 (Competence) state that a lawyer should ordinarily obtain consent from the client before retaining or contracting with other lawyers outside the lawyer’s own firm. See Comment  to Rule 1.1. Note that “Informed Consent” is defined in the rules as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See Rule 1.0(e). This means that any co-counsel relationship, no matter how small, should be discussed with the client ahead of time and the client should consent not only to the fact of the co-counsel relationship, but also to who that specific individual will be.
Additionally, any lawyers finding themselves in such an arrangement should consult with one another and the client about the scope of their respective representations and the allocation of responsibility between them. See Comment  to Rule 1.1. Further, the client’s informed consent to any limited scope representation must be confirmed in a writing signed by the client which explains the essential terms of the representation and the lawyer’s limited role. See Rule 1.2(c). This consent from the client to each attorney’s limited role in the representation can also be a great risk management tool.
Lastly, any co-counsel relationship must comply with the requirements for a division of fee under rule 1.5 regarding fees. Review your state’s rule about fees closely to ensure compliance in every co-counsel situation.
If you have questions about this topic, or other Risk Management issues, contact our Risk Managers at 1-800-843-2277 x171.