Steps being taken to stop the spread of the coronavirus reveal true weaknesses in the judicial system.

What are concerns about the court's actions with the coronavirus and other matters recently?

Samuel C. Stretton.

The coronavirus and the steps being take reveal true weaknesses in the judicial system, at least in Pennsylvania. Although I believe the restrictions were a serious overreaction, there was a need for concern and limiting the number of people in courtrooms, etc,

Having said that, the first point that sticks out is the need for a truly unified judicial system. There was much confusion before the Pennsylvania Supreme Court issued their orders and even afterwards. The confusion is seen by the different actions every county took. Some counties were still having hearings or some hearings. In this modern world where lawyers practice in multiple counties, the need for a unified response from each county became very clear. It becomes impossible to be on top of 67 different counties. The need for a uniform practice becomes apparent.

Second this virus scare makes it very clear that in the future there is a need to end county funding of the courts. Statewide funding of all the county courts now must be the norm. The county's courts would be consolidated under the Pennsylvania Supreme Court and each county would have the same procedures and rules.

Third, the court system and the Supreme Court failed to take into effect the affects these shutdowns have on attorneys. These rules and orders pretty much shut down the practice of law in Pennsylvania. Sometimes people who are getting paid by the government forget that lawyers make their money not from the government, but by individual clients coming in. Most firms, particularly small firms, have very little surplus and live week-to-week. By stopping all courts and suggesting lawyers close their offices, many of the law firms are facing a terrible financial hit. But clearly, it would have been nice if the court or others had consulted with the private bar to recognize what this impact would be on practicing lawyers. Perhaps at one time lawyers were the wealthier members of the community and they had a lot of money. Clearly, some of the major firms have a lot of money. But most lawyers don't. Shutting down courts totally and indefinitely and for a month or more creates real financial hardship and perhaps lawyers aren't going to be practicing after this because of the end of their firms. That is a great tragedy and totally ignored by the court and the court's administrative offices in entering their orders.

Fourth, all the orders and decisions demonstrate the low regard the courts treat members of the bar. It appears most of these decisions were made unilaterally by president judges or the Supreme Court with little or no input from members of the bar. If there was input, presumably it was from bar associations and big firms that often dominate those organizations. This further alienates small firms and solo practitioners since they feel they no longer have a say in the system and that the courts do not value their services. The small firms are the backbone of the legal profession. Without a healthy strong solo and small firm base, the stories independence of the legal profession will become a storied myth.

Fifth, after canceling numerous hearings, there is no procedure to at least work with the private bar of a particular county as to convenient dates to reschedule cases. Matters are just unilaterally canceled, and, apparently, are going to be unilaterally rescheduled without any input from lawyers as to changes, schedules or witnesses, etc.

Sixth, the concerns of the litigants, whether it's a criminal defendant about to have to spend more time in jail or suffer more anxiety waiting for a resolution or a civil litigant who has been really wronged and needs the funds they are seeking in litigation are not really taken into consideration. There is no case-by-case review of what perhaps should still go to trial and what should not, and individual review and concern. No private lawyers were contacted.

Seventh, one of the concerns was that it seemed like the executive branch, i.e., the governor, and, to a lesser extent, the legislative branch, pressured the judicial branch into taking these steps. The actions of the governor, mayors and others ordering all kinds of closures raised some raised some real issues as to whether they have the authority to do this. I don't believe they do have such an authority. But every one of their actions impacted and essentially pushed the courts into closing down the legal system. For lawyers, the independence of the judiciary took a major blow when the executive branch apparently running the show.

Eighth, the weakness in emergency plans became apparent. There was never any plan B. These are some thoughts and whether they are truly accurate or just someone howling in the wind remains to be seen. But it has been a devastating experience for many small firms and their offices. Everyone talks of the independence of the courts, there is also an important concept of independence of the bar. Although the Supreme Court, to some extent, provides that independence through the independence of the courts and its regulation of the bar,  the independence of the bar also depends on the financial strength and ability of small firms continuing to practice. Once they are lost, then that is lost. Then the independence of the bar will no longer truly exist and will just be a myth of a bygone era.

An attorney's duty of confidentiality to a client never ends.

When does the duty of confidentiality of a client end, if ever?

It never ends. The duty of confidentiality between an attorney and a client is one of the strongest privileges. Whether it's the common-law attorney/client privilege or the Rules of Confidentiality under Rule 1.6 of the Rules of Professional Conduct, the privilege is extremely strong and it should be the goal of every lawyer never to break it.

Although commentators say one of the most serious acts of misconduct a lawyer can do is steal clients' monies, in reality the most serious violation of all is the breach of confidentiality.

The Rules of Professional Conduct are very clear in creating strong requirements of confidentiality for regulatory purposes. Under Rule 1.6 of the Rules of Professional Conduct, it clearly states a lawyer shall not reveal information relating to the representation. Traditional attorney/client privilege was confidence and secrets. And the Rule of Confidentiality has broadened the confidentiality to include anything relating to the legal representation.

For instance, if a client told a lawyer that they had been convicted of a crime, say in the military or in another state, that is now within the privilege. Under traditional attorney/client analysis, it would not be since the convictions are public information located somewhere. But under Rule 1.6 since the lawyer received the information from the client in the attorney/client relationship, a lawyer cannot reveal that information without the client's consent. That could create a problem sometimes if a judge, for instance, asks if there is any prior record when a lawyer knows of this, but no one else knows it. A lawyer can't reveal it, but on the other hand, the lawyer can't lie to the judge. A lawyer can't acquiesce if the acquiescence will be considered that the lawyer is saying there is a prior record. Under those circumstances, a lawyer should assert, I can't answer due to attorney/client privilege or speak to the client and see if the client will waive the privilege on the issue.

But in terms of the strength of the attorney/client privilege, it lasts forever. Under Rule 1.6, the following is stated: "The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has been terminated."

Therefore, there is no confusion at all that the attorney/client privilege and the confidentiality that the client is entitled to continues even after the end of the representation or the client's death. Lawyers who have flies, therefore, have to take care of those files. If a lawyer then passes away, those files cannot just be thrown in the trash or relatives cannot just review files for fun. The confidentiality of the files have to be protected. Lawyers should make provisions for files to be shredded after so many years and giving the files back to the client.

Sometimes there is a duty after termination of the relationship in the context where a lawyer is representing a new client and the former client is a witness. Rule of Professional Conduct 1.9 is very clear that a lawyer cannot use information gained in the prior representation to hurt the client, and if he has that information a lawyer should disqualify himself.

Lawyers have to be careful at times when they, for instance, teach seminars or lecture for continuing legal education. Oftentimes, the old war story is fascinating to hear, but lawyers must preserve the confidentiality of a client, which sometimes the lawyer is not as careful doing because of the entertaining story they are telling.

The attorney/client privilege or confidentiality in the relationship provides the true strength of the relationship. Without the promise of very strong confidentiality, It would be difficult to imagine that attorney/client relationships could be fruitful and helpful. There has to be an absolute trust and confidence by the client in the lawyer, where the client can provide important information that would aid the lawyer in looking out for the client's interest, and the information would be absolutely confidential. The cornerstone of the attorney/client relationship is that the privilege must be protected and lawyers must recognize the importance and purpose of that privilege and take all steps to protect it.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.