Next week, the Association for Professional Responsibility Lawyers will hold its first conference in-person since early 2020. Everyone attending in person has been asked to submit proof of vaccination. I admit to over-excitement at sending that e-mail with the card. I’ve missed my nerd friends.
Those who do not wish to submit proof, for whatever reason, can attend virtually. And in any case, APRL is a voluntary bar and can make whatever vaccine rules it wants, and nobody is required to attend the conferences. (Though if you’re in the ethics bar, you should.)
But how do vaccine mandates hit lawyers for appearances that are not optional?
First, this is a pro-vaccine blog. If you are able to get the vaccine, get the vaccine. I understand you may be worried about side effects; talk to your doctor about that.
Aside from that, though, do lawyers have an obligation under the Rules of Professional Responsibility to get the vaccine if they are able?
Let’s unpack this a bit.
Some employers have already imposed vaccine mandates. President Biden has ordered OSHA to create regulations to require employers with 100 or more employees to require vaccination or weekly testing.
The Supreme Court Rules aren’t employment rules; if you quit a job or are terminated because you don’t comply with a vaccine mandate—or a showing-up-on-time mandate or a wearing-pants mandate, for that matter—the Office of Lawyer Regulation is not going to get involved, absent more. That’s a private business decision.
But, some courts are starting to impose mandates, not just for their own employees but for anyone entering the building.
Last month, Judge J.P. Stadtmueller of the Eastern District of Wisconsin issued a covid-19 vaccine order for his courtroom. Anyone entering the courtroom—parties, witnesses, lawyers—will need to submit proof of vaccination within 14-days before their appearance. Those with a medical exemption will need to provide a note from a board-certified physician explaining the “exact medical necessity.” They must also provide evidence of a negative covid-19 test. There does not appear to be a religious exemption available
The court will, upon motion, adjourn matters to allow people time to get vaccinated. But the order is clear—the motion must indicate a date on which the unvaccinated parties will receive their shots.
This follows an order from the Seventh Circuit Court of Appeals requiring lawyers appearing for in-person argument as of October 4, 2021, to be fully vaccinated; those who are not can still argue telephonically or by an approved videoconferencing system. Court staff must be vaccinated, subject to medical or religious exemption.
So what does this all mean? Depending on where and what you practice, there may come a time where you won’t be able to effectively advocate for your clients if you’re not vaccinated. You may not be able to enter a courtroom. You may have to appear by telephone, which may not be as effective, or you may not be able to appear at all.
In other words, lawyers who are eligible for vaccination and refuse to do so may be putting their own interests ahead of those of their clients. Is this a material limitation conflict?
So far, there isn’t any real guidance on this—discipline is, after all, a lagging indicator—but it will not surprise me to see grievances arising from a lawyer’s refusal to vaccinate, if that refusal delays a case, harms its presentation, or constitutes a violation of law or court order. The lack of vaccination itself may not be the violation (and so far there is nothing in the Rules to suggest not getting vaccinated by itself will constitute a violation), but the effects might be.
Now, let’s say you work remotely for an employer without a mandate, and never set foot in a courtroom. At this point, I don’t see disciplinary authorities getting involved, again absent more.