(Someday, I will get back to writing about things other than coronavirus. Today is not that day. And someday I will find better pictures to accompany these posts. Today is also not that day.)

I know a couple of lawyers who have presumed or confirmed cases of COVID-19. Happily, all of them are doing well, even if it was bumpy for awhile. None of them have posed this question to me, but I’ve seen it elsewhere as a hypothetical—what are lawyers’ duties if they have become ill with COVID-19?

I haven’t seen anything too specific about this. But it is 11:40 at night and I have recently adopted a teenager sleep schedule, that seems to be when my brain starts revving up with questions that really need to be answered if I want to sleep. (Also in the queue: If I am working on a task between 11:27 p.m. and 1:08 a.m., would anyone really care if I just picked a day and billed the whole thing to that day or do I need to divide it? Whatever happened to that one case I left at my last firm when I moved five and a half years ago? Do I really want to know what that noise is coming from the dishwasher?)

Under normal circumstances, with normal illnesses that last a few days or a week, lawyers generally don’t need to disclose much, and if they do, they usually get some version of “oh, sorry! I hope you feel better!” But this isn’t normal circumstances with normal illness, and I don’t think we’re at the point where “I’m out with COVID-19” will get casual sympathy in response.

So what to do? Some of this will depend on your symptoms and prognosis. If your illness is mild (or perhaps even asymptomatic) and you are able to work from home, you may not need to say anything. And even if you are ill, as with just about anything, what you need to tell your clients depends on the specifics of the situation.

if you are working on a litigation file, discovery has been responded to, and you’re just waiting for the other party to respond to summary judgment four weeks from now, you may not have any work to do for that client while you are sick. In that case, there may not be any reason you would need to tell them you are ill.

(That said, things can change in a hurry and you should make sure you have someone who knows what’s going on, especially if you are a solo practitioner, in case of emergency. But that’s true regardless, right?)

But if you are too ill to work, the duties of competency (SCR 20:1.1), diligence (SCR 20:1.3) and communication (SCR 20:1.4) do require you to notify clients that you will not be able to work appropriately on their files.

Do you need to disclose the COVID-19 diagnosis itself? Assuming that you did not meet with your client in person while you were potentially contagious, the answer is no. As with any other medical issue, you are entitled to privacy and don’t need to share unless you want to share.

If you did meet in person while you were potentially carrying the virus (usually thought to be up to 14 days prior to symptoms), it becomes a bit more complicated. I think morals may require you to let someone know they may be exposed, but I found no Supreme Court Rule or other guidance that creates an ethical duty. SCR 20:1.4 requires communication so that clients can make informed decisions about the representation, but that doesn’t seem to fit this situation. SCR 20:8.4(c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; lying about exposure to a novel disease would likely be prohibited, but this does not suggest to me an affirmative duty to reach out to a client who hasn’t asked. (And, also, I’ve never seen a case where 8.4(c) or any other Rule actually required a lawyer to divulge specifics of their health condition.) I don’t have an answer.

If you live somewhere that the health department is performing contact tracing (identifying and notifying people you may have come in contact with during the infectious period), the tracer may end up doing the disclosure for you (potentially without naming you, and just indicating to the person that they have been identified as potentially exposed). To fulfill this responsibility, the tracer may ask you about your client contacts.

As a reminder, the duty of confidentiality under SCR 20:1.6 (and most state equivalents) is broader than the attorney-client privilege. Lawyers are not permitted to disclose “information relating to the representation of a client” absent informed consent, implied authorization, or an exception to the rule. <strike>Generally, the mere identity of a client is not considered “information relating to the representation of a client” and letting a contact tracer know you’ve been in the same room with someone does not even reveal the fact that someone was a client. I believe you can safely provide names to the tracer, as it does not implicate confidential information. </strike>

Update: Unfortunately I had linked to an outdated opinion. In 2017, the Ethics Committee concluded that client identity is considered confidential information related to representation that should not be disclosed absent informed consent, implied authorization, or an exception. I regret the error. The following narrative is applicable more broadly than to clients who have affirmatively requested secrecy.

However, sometimes a client wants you to keep the fact that you’ve ever heard of them confidential. (That happens in my line of work—occasionally, when gatherings among lawyers used to be a thing, someone would come up to me and say “I probably shouldn’t be talking to you, or people will think I’ve got an issue with the Office of Lawyer Regulation.” I would reply, “oh, my clients are completely avoiding me today, so you’re fine.” Sigh. I miss being that lawyer who people don’t want to talk to in public. Now nobody talks to anyone in public. Anyhow.)

What then? SCR 20:1.6 allows lawyers to break confidences to comply with law, or in order to prevent reasonably likely death or substantial bodily harm. So, if there is a law or emergency order requiring you to share this information with a contact tracer, the Rule provides cover. Absent that, I can’t really comment on whether notification to someone you may have met with 12 days ago, who may or may not have been exposed to the virus through you, or for all we know had the virus and may have transmitted it to you, constitutes something reasonably necessary to prevent “reasonably likely death or substantial bodily harm.” I don’t think anyone has performed these calculations. (Maybe an epidemiologist also keeping teenager sleep hours can weigh in.)

Importantly, we are in an emergency here. The Supreme Court Rules are rules of reason. I would hope that nobody would complain that their lawyer informed a contact tracer that they existed. I would hope that nobody would file a grievance because their lawyer got sick and had to get an extension the client didn’t want, and I would hope that the authorities would excuse something like that, even if communication could have been better, because, well, we are in an emergency here.

I’m happy to be challenged in this thought exercise, so if you think I’m wrong, please weigh in.