Today, I will advise my client to disobey a court order. And I will be acting ethically.
The California State Bar Rules of Professional Conduct starts off with this requirement of all lawyers: “A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” It goes on to provide that ”a lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows …is a violation of any…ruling of a tribunal.” In sum, a lawyer cannot advise a client to disobey a court order — such as an order to appear in court — without violating the Rules of Professional Conduct. With that said, the Rules go on to provide that a lawyer may “discuss the legal consequences” of disobeying that order and “counsel or assist a client to make a good faith effort to determine the validity” of the court order.
In law school and in ethics examinations from the State Bar prior to becoming a lawyer, lawyers are forced to interpret these rules and apply them to hypothetical situations. What these hypotheticals never involved, however, was life and death. And not just life and death for one individual, but public health as a whole. This is the conundrum we face as lawyers in the face of the COVID-19 pandemic with a judicial hierarchy in Los Angeles County that continues to defy logic by ordering lawyers, clients, and the public into court.
Shall I advise my elderly and vulnerable client to appear in court this morning because there is a court order to do so? When I know that this exposure is contrary to public and personal health? Would this not be a “reckless” or “grossly negligent” act? For a simple continuance that the court itself proved last week could be done without the presence of anyone?
As just a measly sole practitioner, my power to influence those that make decisions is virtually non-existent. So I decided to do the only thing many of us without power in this digital age can do: send an email to those that do.
To: Los Angeles Department of Public Health
From: Pat Carey <firstname.lastname@example.org>
Date: March 22, 2020 09:08pm
Subject: Please Listen: A Plea to Recommend Court Closure
My name is Pat Carey. I’m a criminal defense attorney in Los Angeles. I’m a former Deputy District Attorney of Los Angeles County. I’m a California State Bar Certified Criminal Law Specialist. Why do I lead with my background? To display how seriously I take my duties to my clients, the constitution, and my profession. I’m privileged to have worked in this field on both sides of the table for 13 years.
I currently have approximately 60 open cases throughout the county in my private practice. Given the courts decision to remain open during this time, however, I feel the need to express and inform you of the exposure you are creating by essentially disobeying common medical knowledge that all public gathering areas should be closed. This, from my personal perspective and experience.
The criminal courts have deemed that our services are “essential”; yet the “service” we are providing is appearing in court in large public gatherings with untested and sometimes symptomatic individuals only to call a case and continue it. While the superior court judges that are making the decision to keep the courts open come in to the courthouse through their private parking, private elevator, and into their private chambers, the rest of us enter exposed together. We touch the same doors to enter; we wait in line contradictory to social distancing science; we touch the same and required security containers and put our personal belongings in them only to pass them to the unknown individual waiting behind us; we are “wanded” by the same security individual who gets within inches of every person who enters the building. We then enter a packed elevator with more strangers. Why do we do all this? To enter a courtroom, call a case, and continue it.
Sure these are all practical complaints. But the larger picture is the lack of perspective that those in charge have with an individual such as myself. My son is 6 years old. He currently exhibits 3 of the 5 known coronavirus symptoms. He has tested negative for the flu. He is NOT being tested for Covid-19 however, per a mandate that those that are not vulnerable or in a critical or serious condition should not “waste” a test. My son is being treated with multiple antibiotics, breathing treatments, and steroids. He is on his 5th day of this treatment. He has seen a specialist daily.
Because he has not been tested, I of course am in an unknown diagnostic state. And I’m not alone. Hundreds if not thousands of individuals are in the same boat as me. And yet in order to maintain our legal practices, constitutional duties, and duties to our clients, the county is ORDERING our physical presence in court. This is contrary to science and more notably contrary to public health.
Do I believe this email will cause change? Unlikely. But it will be timestamped. It will be sent to an individual that has a voice and ability to make a difference.