Ethics in Pandemics: The Lawyer for the (Crisis) Situation RAYMOND H. BRESCIA*
ABSTRACT 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
* Hon. Harold R. Tyler Chair in Law & Technology, Albany Law School. JD, Yale Law School; BA, Fordham University. I would like to thank those who provided helpful feedback on earlier drafts of this piece, including Scott Cummings, Stephen Gillers, Peter S. Margulies, Richard D. Marsico, and Michael J. Wishnie. I am also grateful for the comments I received from the members of the Association of American Law Schools’ Section on Professional Responsibility, particularly Susan Saab Fortney, Leslie C. Levin, Melissa Mortazavi, and Irma S. Russell, as well as my colleagues at Albany Law School, especially Ava Ayers, Patricia Youngblood Reyhan, and Sarah Rogerson, who offered comments on earlier drafts of this Article. I also received excellent administrative support from my colleague, Sherri Anne Meyer, and research assistant support from Albany Law School students Alex-Marie Baez, Claire Burke, Hannah Hage, Victoria Lang, and Lauren McCluskey. I am, of course, solely responsible for all errors and omissions. © 2021, Raymond H. Brescia.
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