Can a New York lawyer's health concerns about appearing in court in person during a pandemic create a conflict of interest that requires withdrawal?
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This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses a lawyer who is formally required to appear in court in person during an ongoing public health crisis and is concerned that doing so poses a health or safety risk. It reads Rule 1.7(a)(2), which finds a conflict where a reasonable lawyer would conclude there is a significant risk that the lawyer's professional judgment will be adversely affected by the lawyer's "financial, business, property or other personal interests," to reach a lawyer's legitimate health concerns. The opinion concludes that the phrase "other personal interest[s]" is not limited to business or financial conflicts.
The opinion concludes that the existence of a pandemic does not by itself create a conflict. The analysis is case-by-case and turns on the risk to the lawyer and the reasonably available options for proceeding, such as a court's health and safety protocols, a virtual appearance, or having a colleague cover the appearance. A lawyer with preexisting conditions or an at-risk household, where no virtual accommodation is available and an in-person appearance is required, may conclude a conflict exists.
If a conflict exists, the opinion concludes the next question is whether it is waivable under Rule 1.7(b)(1), which requires the lawyer to reasonably believe the lawyer can still provide competent and diligent representation. Where the lawyer's concerns make it impossible to communicate adequately with the client or otherwise meet the competence and diligence standards of Rules 1.1 and 1.3, the conflict is not waivable and Rule 1.16(b)(1) requires withdrawal. The opinion notes that a tribunal may still order the lawyer to continue under Rule 1.16(d), and that the lawyer must avoid foreseeable prejudice to the client under Rule 1.16(e).
The opinion also addresses supervisory duties: under Rules 5.1 and 5.2, lawyers with management or supervisory authority must take reasonable steps to staff matters appropriately and address competence and conflict issues, and subordinate lawyers must raise potential issues and seek guidance.
In practice
Under this opinion, as the New York rules stood at the time, a lawyer's health concerns about a required in-person appearance are analyzed as a possible personal-interest conflict rather than as a standalone excuse. The opinion holds that the lawyer should first ask whether a conflict exists under Rule 1.7(a)(2), then whether reasonably available alternatives (a court's safety protocols, a virtual appearance, or coverage by a colleague) resolve it, then whether any remaining conflict is waivable, and finally, if it is not, whether Rule 1.16(b)(1) requires withdrawal.
The opinion also holds that a lawyer who refuses to appear in person should be mindful of Rule 3.4(c), which bars disregarding a standing rule or ruling of a tribunal but permits good-faith steps to test its validity.
Common questions
Q: Can my own fear of getting sick in court be a conflict of interest with my client?
A: It can. The opinion concludes that a lawyer's legitimate health and safety concerns about a required in-person appearance during a public health crisis can qualify as a personal-interest conflict under Rule 1.7(a)(2), because the rule's reference to "other personal interest[s]" is not limited to business or financial interests.
Q: Does a pandemic automatically create a conflict requiring me to step back?
A: No. The opinion concludes that the existence of a pandemic does not by itself create a conflict. The analysis is case-by-case and depends on the risk to the lawyer and whether alternatives such as court safety protocols, a virtual appearance, or coverage by a colleague are reasonably available.
Q: If the conflict cannot be waived, do I have to withdraw?
A: Yes. The opinion concludes that where the lawyer's health concerns make it impossible to provide competent and diligent representation, the conflict is non-waivable and Rule 1.16(b)(1) requires withdrawal, though a tribunal may order the lawyer to continue under Rule 1.16(d).
Q: What do supervising lawyers have to do?
A: The opinion concludes that under Rules 5.1 and 5.2, supervising lawyers must take reasonable steps to staff matters appropriately and address competence and conflict issues, and subordinate lawyers must promptly raise potential issues and seek guidance.
Background and rules framework
The opinion interprets New York Rule of Professional Conduct 1.7(a)(2) (personal-interest conflicts, analogous to Model Rule 1.7(a)(2)) and Rule 1.7(b)(1) (waiver), read together with Rule 1.1 (competence), Rule 1.3 (diligence), Rule 1.16 (declining or terminating representation, analogous to Model Rule 1.16), Rule 3.4(c) (disregarding a tribunal's rules or rulings), and Rules 5.1 and 5.2 (responsibilities of supervisory and subordinate lawyers). The opinion draws on ABA Formal Opinion 482 (2018), which addresses lawyers' obligations after a natural disaster, and on NYSBA Ethics Opinion 1203 (2020), which addressed permissive withdrawal under Rule 1.16(c) for fear of COVID-19 exposure.
Citations and references
Rules of Professional Conduct:
- NY RPC 1.7(a)(2), 1.7(b)(1) (personal-interest conflicts and waiver)
- NY RPC 1.1, 1.3 (competence and diligence)
- NY RPC 1.16 (mandatory and permissive withdrawal)
- NY RPC 3.4(c) (disregarding a tribunal's rules or rulings)
- NY RPC 5.1, 5.2 (supervisory and subordinate lawyers)
- MR 1.7, MR 1.16, MR 5.1 (Model Rule analogues)
Other opinions cited:
- ABA Formal Op. 482 (2018): lawyers' obligations after a natural disaster
- NYSBA Ethics Op. 1203 (2020): permissive withdrawal for fear of COVID-19 exposure under Rule 1.16(c)
- NYCBA Formal Op. 2015-4 (2015): duties of local counsel
See also
- NYC Bar Ethics Op. 2024-3: Ethical obligations relating to a cybersecurity incident
- NYC Bar Ethics Op. 2025-5: Conflicts of interest arising out of a lawyer's personal beliefs
- NYC Bar Ethics Op. 2024-1: Representing two or more competing bidders for the same asset
Source
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