Professionalism is the cornerstone of the legal profession. Treating others with respect, zealously advocating for clients and abiding by the requirements for integrity and civility are among the highest ideals in the practice of law. But what does the duty of professionalism look like in the middle of a worldwide pandemic?

A court order from the Northern District of Illinois—referred to now as the "Unicorn Order"—made the rounds on legal blogs and news sites recently. In that case, a plaintiff filed a motion for a temporary restraining order and requested a hearing to prevent defendants from selling allegedly counterfeit products that infringed plaintiff's trademarked unicorn designs. In light of the COVID-19 pandemic and wide closures, the court postponed the hearing by a few weeks.

After the plaintiff filed a motion for reconsideration and asked for an immediate hearing on its request for a restraining order, the court excoriated the plaintiff, quoting the early 20th century Secretary of State Elihu Root: "About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop." The court noted that the court's resources were to be dedicated to true emergencies: "The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied."

Another court order out of the Southern District of Florida addressed an emergency motion for a protective order dealing with the scheduling of a corporate designee deposition. This judge, similar to the Unicorn Order, implored the attorneys to "keep things in perspective" in light of the virus-caused deaths, loss of jobs and uncertainty about the future. The court indicated that a "spat over the specific day of a corporate representative deposition is hardly critical" such that the parties should not have sought use of the court's limited resources on this issue.

The court went on to criticize both parties for continuing to fight over the scheduling of a deposition, noting that if all the world issues were organized on a "ladder of importance," this issue "would not even reach the bottom rung." The court found that it would not be reasonable to require the preparation of a corporate witness (testifying on behalf of the cruise industry, which has been particularly harmed by the ongoing crisis) during these times, noting that even without the deposition occurring at this time, "life will go on." The court concluded by noting that at a future hearing, the attorneys involved will be required "to explain their behavior in context of the far-more-important issues this Court (and the entire world) is facing."

While some commentators have suggested these courts went a little too far given that lawyers have ethical obligations to zealously pursue their claims and protect their clients, the takeaway for many has been that, even in the midst of stay-at-home orders and global shutdowns, attorneys are well-served by focusing on their duty of civility.

Be Patient

As reflected in the court orders that have made the rounds in recent weeks, courts have been critical of litigators who cannot work together to resolve technical or deadline-related disputes or who seek to use the court's limited resources to resolve issues that the courts do not view as truly "urgent."

Some bars are taking action to remind attorneys that the current circumstances may warrant a kinder, gentler approach to disputes. For example, the Legal Ethics Committee of the Bar Association of San Francisco issued a statement advising its attorneys to "avoid unnecessarily contributing to creating stress through our actions." To maintain the integrity of the legal profession and maintain civility, the committee urged lawyers "to exercise professional judgment and to extend courtesies to avoid unnecessarily exacerbating this already difficult situation. … This is a time for our profession to demonstrate an even higher level of civility in the legal profession without compromising obligations to clients. We also urge lawyers to not participate in any activity, strategy, or conduct that would put anyone at unnecessary health and safety risk."

There can be a tension for attorneys who are facing uncertain futures in light of market dips or other pressures. Those attorneys may feel tempted to accelerate disputes to move issues forward and ensure their livelihood. Indeed, many cases, courts and litigants are taking steps to move matters forward judiciously in light of the present circumstances, such as by scheduling depositions to occur remotely or by permitting parties more time to gather documents for production (instead of proceeding straight to motions to compel).

The balance is in ensuring that attorneys are meeting their obligation to zealously represent their clients (and are acting to preserve their clients' rights) while still being mindful of the unusual present circumstances that are changing "business as usual."

Exude Professionalism

Another issue on the front of attorneys' minds is how to exude professionalism when videoconferences are now the norm. Sweatpants and quarantine beards are commonplace among many working from home, but what standards apply? In short, you may need to consider your audience. If you have close relationships with internal colleagues and you are sure that no one minds your sweatpants and beard, then go for it. But, if you aren't sure, or you are meeting with clients, external colleagues, or others you don't know well, take steps to ensure you are still exuding an air of professionalism, that your clothing is appropriate, and that your background (or virtual background) is not distracting or juvenile.

There have been a number of news stories about judges who have chastised attorneys for appearing before them by videoconference without proper business attire and even while sitting in bed. When in doubt, it is always safest to err on the side of over, rather than under, dressing, which means always wearing a jacket for court appearances as though you are in the courtroom.

While there is great uncertainty to how litigation and other legal disputes will proceed in light of court closures, reduced schedules and remote practicing, it appears that the duty of professionalism remains.

Shari L. Klevens is a partner at Dentons in Atlanta and Washington, D.C., and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team.

Alanna Clair, also a partner at the firm in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance" and the 2020 edition of "Georgia Legal Malpractice Law."