Shari Klevens, left, and Alanna Clair, Dentons (Courtesy Photo)

One challenge of practicing law is that, in the midst of a heated dispute, attorneys sometimes lose sight of the importance of treating others in a professional and civil manner. Now, with all of the suffering and disruption caused by the COVID-19 pandemic, one hope is that attorneys will recognize the heightened importance of treating adversaries with respect and compassion.

Indeed, while attorneys may have an obligation to act as zealous advocates for their clients, courts have recognized that the need to act with integrity and basic decency is especially important in the current environment. For example, a recent court order out of the U.S District Court for the Southern District of Florida addressed an emergency motion for a protective order dealing with the scheduling of a corporate designee deposition. In addressing the motion, the judge 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."

Similarly, 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 the plaintiff's trademarked unicorn designs. In light of the COVID-19 epidemic 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 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."

Some commentators have argued that these courts' criticisms were perhaps unwarranted in light of the attorneys' ethical obligations to zealously pursue their claims and protect their clients. Nonetheless, 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.

Exercise Patience

In regular times, courts urge (and often require) that parties make a good faith attempt to resolve a dispute before involving the court. As reflected in the court orders discussed above and others that have made the rounds in recent weeks, courts have been especially critical of litigators who cannot work together to resolve technical or deadline-related disputes during the pandemic.

Bar associations are also urging attorneys to be mindful of others. For example, the legal ethics committee of the Bar Association of San Francisco issued a statement advised 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, in some 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 circumstances that are changing "business as usual."

Maintain Professionalism

Practicing law from home has created challenges for attorneys accustomated to the formality of the office or a courtroom. Court appearances or client meetings now might occur by telephone or video at home in decidedly less formal settings. To be sure, less formality (including perhaps sweatpants and "quarantine beards") may be appropriate in some instances, particularly for meetings with close colleagues. 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 also have been a number of news stories about judges who have chastised attorneys for appearing before them by video conference without proper business attire or 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.

The pandemic has impacted all aspects of the legal profession and, in some instances, has forced courts, attorneys, and clients to adjust expectations. Nonetheless, through all of the challenges, the duty to maintain professionalism remains an important part of the practice of law.

Shari L. Klevens is a partner at Dentons US and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of "California Legal Malpractice Law" (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense.  Shari and Alanna are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance."