Ethical Considerations in Planning a Winter Vacation
By Rachelle Cohen, Kehr, Schiff, Crane & Cohen, LLP
If you are planning a winter vacation, you undoubtedly are looking forward to some rest, relaxation, or time off from working. Far too many professionals these days are able to stay plugged into the office during their vacations with the same tools that allowed them to work from home through the pandemic. However, if you are looking to unplug while on vacation, it’s important to plan ahead so that you can continue to fulfill your ethical obligations.
A lawyer representing a client must act competently, diligently, and keep the client informed. See California Rules of Professional Conduct (CRPC), rules 1.1, 1.3 and 1.4. If a vacation is for a relatively short period of time, a lawyer likely will not have trouble satisfying these rules. However, the opinion in West Coast Development v. Reed (1992) 2 Cal. App. 4th 693 serves as a cautionary tale. In that case, the plaintiff, a real estate owner, had sued the defendant contractor after the contractor had filed a mechanic’s lien, which was the basis for the superior court’s jurisdiction. The monetary claims were minimal, and the parties engaged in settlement negotiations. The defendant contractor released the mechanic’s lien, but the case was not settled. The trial had been set to begin on September 18 and plaintiff’s lawyer took a vacation from September 4 to September 12. As trial approached, defendant’s lawyer, apparently believing there was no basis to proceed to trial, sent a demand letter to plaintiff’s attorney stating that she would seek sanctions if she had to prepare for trial. This letter was delivered during the September 4-12 vacation period, but plaintiff’s lawyer did not see the letter until Saturday, September 15, three days before the trial. The plaintiff’s lawyer discussed the letter with his client and, on the day before trial, filed a voluntary dismissal. By that point, the defendant’s attorney had prepared for trial and traveled to attend the trial. The trial court had awarded sanctions against the plaintiff for filing a frivolous lawsuit. The appellate court reversed and remanded because the trial court didn’t state the grounds for sanctions, but it agreed that the facts supported an award of sanctions. Although other facts in this case supported the award of sanctions, this case highlights the importance of pre-vacation planning so important communications are not missed.
Of course, lawyers should consider setting vacations for times that do not coincide with any need for their services. Most major client developments requiring a lawyer’s attention are foreseeable and should be factored into vacation plans. For example, don’t plan a vacation conflicting with a client’s expectation for the closing of a major deal or any other transaction that foreseeably will require your active involvement. Certainly, you should avoid setting a vacation at the same time as a scheduled trial, or one that might interfere with your proper trial preparation, or an end-of-year closing. Or you might consider not taking a case or matter if you have a vacation planned during a time when that case is expected to need your personal attention.
Even with the most diligent planning, you might end up having a vacation scheduled during an inconvenient time for client matters for which you are responsible. If a vacation is planned during a time in which you have active client matters that need your attention, pre-vacation planning will include communicating with all of the parties involved and otherwise making arrangements to assure the client’s needs will be met. Of course, you should let your clients know when you will be unavailable. You also should alert opposing lawyers and any other parties that you might expect to reach out to you. This is often accomplished by lawyers through automatic email messages. However, because automatic email messages can easily be overlooked, prior to going on vacation it would be best to directly inform those clients and persons involved in active matters using the mode of communication preferred by that person, which might be email, text, or phone call.
Finally, you should give some thought to how someone can get in touch with you when on vacation. There are precious few places remaining in the world that do not allow for cell phone or email communications. However, before informing people you will be available by cell phone or email, you should consider whether you want to be reachable or will check for communications while on vacation. If you tell a client you will monitor your emails once a day, you should make sure to do so. Alternatives to being available while on vacation are to direct clients and others to contact another lawyer or staff member in your office who will be available. If you are a sole practitioner, you could arrange for a lawyer outside of your firm to be available if needed in emergencies. It is important to set these expectations before you go on vacation so clients and others are not surprised when you do not respond while on vacation.
Of course, even if you set yourself up to ignore work while vacationing, it’s possible a matter requiring your attention will arise. On vacation, you likely will bring devices that contain client files or can link to client files. It is important to consider how these devices will be kept physically secure while traveling and what actions will be taken if a device is lost, such as remote device wiping. It also is important for you to know the secure ways to access client information or communications if necessary. Many attorneys have set up some remote capabilities because of the pandemic, such as VPNs to access networks securely, and these capabilities likely will inform the pre-vacation planning. Cal. State Bar Formal Opn. Nos. 2012-184, 2010-179 and ABA Formal Opn. 498 (2021) provide guidance on security and other considerations with remote operations. Even if a lawyer doesn’t intend to take the laptop out of the suitcase, pre-vacation planning for that possibility will ensure smooth sailing if something unexpected comes up.
With some pre-vacation planning, you should be able to get a respite from client matters and enjoy a winter vacation.
Rachelle Cohen is a partner at Kehr, Schiff, Crane & Cohen LLP in Los Angeles, and is a member of the Board of the Century City Bar Association, a member of and former Vice-Chair of the California Lawyers Association Ethics Committee, and the Chair of the LACBA Professional Responsibility and Ethics Committee. The views expressed are her own. This article is republished with permission of the California Lawyers Association.
This article is republished with permission of the California Lawyers Association.