Question

I am concerned about my health if I have to appear in court. What can I do under these circumstances?

Answer

Many lawyers are struggling with the effects of the pandemic and what steps can be taken to continue to provide services to clients without being at risk of experiencing health problems. It may be a long time before society reaches the “herd immunity” level so that everyone can feel more secure when out and about in public settings.

Lawyers can take all necessary precautions as have been outlined by health-care authorities, including handwashing, wearing a mask, and getting vaccinated. Those precautions are helpful to the lawyer but might not bring the level of comfort that the lawyer seeks. If the lawyer concludes that he or she cannot continue to provide representation to a client because the representation involves unsafe conditions, the lawyer may have to withdraw from representation.

SCR 20:1.16 of the Wisconsin Rules of Professional Conduct provides some guidance for a lawyer in this setting. The rule provides as follows:          

(a) Except as stated in par. (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or

(3) the lawyer is discharged.

Paragraph (c) of this rule requires the lawyer to comply with applicable court procedures requiring permission from a tribunal when terminating a representation in a litigation matter and may place a lawyer in an unenviable position in which the court requires continued representation even though there are significant health concerns that constitute good cause for terminating the representation. In this instance, the lawyer needs to work with the client and possibly the court to ensure as much protection as possible to avoid adversely affecting the lawyer’s health.

The most common situation involves a lawyer who is not comfortable engaging in representation that involves being in public settings or being exposed to others in a closed environment. The lawyer can withdraw from representation based on the condition that materially impairs the lawyer’s ability to represent that client. The lawyer should work with the client to find other counsel to assist the client in ongoing representation. The lawyer must ensure that the withdrawal of representation will not cause harm to the client such as missing a deadline or not completing the filing of a required court document.

Lawyers must make individual assessments regarding their ongoing representation of clients. Withdrawal from representation would seem to be the last resort but is a viable alternative for lawyers who are concerned about their own medical conditions and the potential effects of COVID-19.

» Cite this article: 94 Wis. Law. 40 (June 2021).