You are two weeks from trial when you notice the beginning of a headache. Then, you begin coughing and experiencing shortness of breath. You notice that you cannot smell or taste your food.

Lawyers, like everyone else, are concerned about the COVID-19 virus and the impact it can have on themselves, their families and their communities. Lawyers may have additional concerns about whether contracting a virus will impact their ability to fulfill their ethical responsibilities to their clients.

Or, what if you receive a serious medical diagnosis requiring long-term treatment that could interfere with your ability to work with the same intensity you do now?

Under any scenario involving compromised health over the short or long term, what are a lawyer’s disclosure obligations to clients, the court and others? As with many other decisions, there is a balance between self-interest and lawyers’ ethical obligations to others. The following provides some guidance on whether and how to communicate personal health issues.

What and when to tell your colleagues

Upon an initial diagnosis, most lawyers will start by disclosing to close colleagues who can help to manage workload and provide support.

In situations involving COVID-19, the first consideration is the safety of others and the need to isolate to avoid exposing others to the virus. If you work in an office that is open and if you are going to the office to work, you should disclose your illness to your colleagues and isolate immediately. Doing so also allows your law firm to conduct contact tracing, while also treating medical information confidentially.

Disclosure to colleagues also serves another important purpose: to ensure that lawyers can receive support from their firms until their illness passes. Doing this does not require a lawyer to share all of their private information or even any private health information, but it can be critical to let other team members know when a lawyer needs additional help and support to meet deadlines or client needs. And, doing this first ensures that details about changes in staffing or workload can be communicated to clients if questions arise.

What and when to tell clients

Does developing a sudden illness create an obligation for lawyers to inform clients? It depends.

First, again, in situations involving COVID-19, a lawyer’s first obligation will be to consider the safety of others and the need to avoid meeting in person with clients to avoid exposing others to the virus. In the event of other illness that is not contagious, Rule 1.4 likely applies. Under Rule 1.4 of the ABA Model Rules of Professional Conduct, lawyers have a duty to keep clients reasonably informed about the status of their case and to explain matters to the extent reasonably necessary to permit a client to make informed decisions. Depending on the circumstances, this could obligate lawyers to let clients know whether the lawyer is experiencing health issues that could impact the client’s case.

For example, if a lawyer is unable to attend a hearing, would that prejudice the client’s case? Some relatively inactive representations may not require special disclosure, such as where a short term illness arises; others may have pending deadlines or obligations that would otherwise require the lawyer’s immediate attention. Under Rule 1.4, a lawyer could be obligated to disclose an illness if it would have an impact on the representation or the client’s ability to make informed decisions. Of course, ensuring that a client’s needs are adequately met by other colleagues is also an option.

While a lawyer’s illness could be a mitigating factor in any alleged failure to meet the standard of care owed to a client, a claim could still arise if a lawyer did not keep a client reasonably informed and/or did not take other steps to ensure competent and diligent representation.

What and when to tell the court

Courts are concerned about the health and well-being of not only their employees, but also all others attending hearings and trials, such as members of the press and the public. Although many hearings and events are still occurring virtually, for any in-person appearances, a lawyer may have an obligation to disclose an exposure, even where not personally ill. For example, a Pennsylvania lawyer was sanctioned recently after the court found that the lawyer had failed to take the pandemic seriously. After the lawyer informed the court that her son had tested positive for COVID-19, the court ordered a pending hearing to be conducted remotely, denying a continuance. The lawyer instead appeared in person at the hearing and purportedly refused to leave when asked, arguing that there was “no legal requirement” for her to disclose her quarantine or COVID status. The judge disagreed, criticized the lawyer’s cavalier disregard of court procedures and directives, and entered an order banning her from entering court facilities until further notice (requiring her to produce evidence of negative COVID-19 tests for her and her family).

These considerations are very different if an illness is not contagious. Nonetheless, a lawyer will need to consider whether to ask for a continuance in a court schedule or ask a colleague to handle if not doing so would compromise a client’s interests.

If more time is needed, lawyers should consider reaching out to opposing counsel to reach an agreement to extend deadlines. Because courts look to litigants to be cooperative and professional, it may be difficult to defend any refusal to accommodate an opposing party’s illness. In the absence of an agreement, a motion to the court may help, but might require some additional disclosure regarding the health issues before it is granted. In the absence of all other solutions, a lawyer may need to consider withdrawing as counsel under Rule 1.16(a)(2) of the Model Rules of Professional Conduct, so that other counsel can be retained.

By considering these issues, lawyers can help ensure that they can focus on their health.