December 2022 LEMR

FEATURE ARTICLE

The Implications of Long COVID for Legal Practice

COVID-19 is the gift that keeps on giving. Physicians and epidemiologists have increasingly come to realize that a significant number of patients who survive COVID show persistent symptoms after the initial infection is over. This new illness has come to be called “post-COVID” or “long COVID.” And those who experience it find their ability to continue working reduced or even eliminated.

Unfortunately, the symptoms of long COVID may be quite debilitating. According to the CDC, these symptoms include:

General symptoms (Not a Comprehensive List)

• Tiredness or fatigue that interferes with daily life
• Symptoms that get worse after physical or mental effort (also known as “post-exertional malaise”)
• Fever

Respiratory and heart symptoms

• Difficulty breathing or shortness of breath
• Cough
• Chest pain
• Fast-beating or pounding heart (also known as heart palpitations)

Neurological symptoms

• Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
• Headache
• Sleep problems
• Dizziness when you stand up (lightheadedness)
• Pins-and-needles feelings
• Change in smell or taste
• Depression or anxiety

Digestive symptoms

• Diarrhea
• Stomach pain

Other symptoms

• Joint or muscle pain
• Rash
• Changes in menstrual cycles

Some of these symptoms can be life changing.

The legal profession must recognize that among those who will experience the debilitating symptoms of long COVID will be thousands of lawyers and legal support staff. The human cost of this new, potentially long, chronic illness on lawyers not only poses enormous human issues, but also issues of compliance with the Rules of Professional Conduct. Many of the most debilitating symptoms of long COVID are the same or similar to those of COVID-19, but there is an important difference. Long COVID is a chronic disease and may affect individuals for years. These impacts may have significant effects on an individual’s ability to perform at a level necessary to comply with the requirements of professional conduct.

KRPC Rule 1.1 requires:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Unfortunately, long COVID may pose a serious risk to an attorney’s ability to fulfill this duty. One symptom, “brain fog,” appears to be quite common. It is important to consider when or whether “brain fog” has become so disabling that it affects a lawyer’s ability to represent his/her client competently. 

Many long COVID sufferers also report intermittent extreme fatigue. Consider a situation in which a lawyer awakens on a day she is due in court and—because of long COVID fatigue—is unable to make her appearance. If her illness is undiagnosed, as many cases of Long COVID continue to be, this becomes even more problematic.

In addition to KRPC Rule 1.1, lawyers suffering from long COVID may also run afoul of KRPC Rule 1.3, which requires that:

A lawyer shall act with reasonable diligence and promptness in representing a client.

The extreme fatigue caused by long COVID might be a problem in preventing affected lawyers from showing the diligence in pursuit of client matters that is ethically required. With long COVID, this is particularly problematic because extreme fatigue may be intermittent so that a lawyer may be perfectly able to handle her responsibilities at some times but not at others. Further, the fatigue may come and go without pattern or predictability.

Another potential negative aspect of long COVID is that many lawyers may resist admitting that they have the illness and believe that they can continue to practice without making any allowances for their symptoms. For solo practitioners who do not have other lawyers working with them on a daily basis, this may be particularly problematic. In firm settings, this poses an additional potential ethical minefield.

KRPC Rule 5.1(a) states:

A partner in a law firm and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.

KRPC Rule 5.1(b) states:

A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

It is not hard to imagine a situation in which a lawyer at a firm is suffering from long COVID and the symptoms are affecting his performance to the point where his continuing to practice without some assistance constitutes a violation of Rule 5.1(b). In such a case, his supervising attorney has to make “reasonable efforts” to assure that the lawyer’s behavior does not violate Rule 1.1.

To satisfy KRPC Rule 5.1, firms may need to establish a plan to deal with lawyers (and staff) who might suffer the effects of long COVID. Saul Jay Singer has suggested the following:

In the face of increased risk of serious incapacitating illness or worse, lawyers must have a ready succession plan for other lawyers to assume responsibility for legal representations and, at a minimum, a plan for promptly communicating with clients and for taking necessary protective action. In larger firms, other firm lawyers may be able to step in to take over a representation on short notice, but even such firms should develop a contingency plan to address how client matters will be handled in the event of mass lawyer incapacity or unavailability.

In the case of solo practitioners, he suggests:

Assuring the continuity of representation can be more difficult for solo practitioners, where there is often no other lawyer to step in to handle cases in the event of the solo’s illness or death . . . Solos should consider partnering with each other in reciprocal agreements to advise clients and courts when the lawyer has become incapacitated or is deceased.

Firms should encourage lawyers to inform their supervisors or the firm management if they believe that they may be suffering from long COVID. Once notified, the firm can take necessary steps to protect the lawyer’s clients according to established plans. This can only be accomplished if the firm knows that a lawyer has long COVID and is working at a reduced capacity because of its symptoms. If lawyers try to hide their symptoms, then it may take too long to implement plans to protect clients. The plan must account for the challenge of intermittent, chronic symptoms that may not always be evident.

Of course, whatever steps a law firm takes when dealing with lawyers suffering from long COVID, they should be aware of all federal and state laws that may protect long COVID sufferers from firm actions. Firms should also stay abreast of any changes in the ways such laws develop in the next few years, as long COVID becomes better understood and formal diagnoses of the disease become more common.

It is becoming increasingly clear that long COVID may affect millions of Americans for years to come. Thus, law firms need to recognize their responsibility to accommodate lawyers and staff who have this new, insidious chronic disease. These accommodations must also assure full compliance with the Rules of Professional Conduct and applicable workspace laws and protect clients.

Read this month’s edition of LEMR

References:

1. https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/index.html.
2. https://www.dcbar.org/news-events/news/legal-ethics-in-the-age-of-the-coronavirus.
3. https://www.dcbar.org/news-events/news/legal-ethics-in-the-age-of-the-coronavirus.

About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a premier law firm representing criminal, civil and family law clients throughout Kansas and Missouri. When your business, your freedom, your property, or your career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 20+ attorneys has you covered. We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for victims of trucking collisions and those who have suffered traumatic brain injuries due to the negligence of others. We fight allegations of professional misconduct against doctors, nurses, judges, attorneys, accountants, real estate agents and others. And we represent healthcare professionals and hospitals in civil litigation.