Context

The Association of Professional Responsibility Lawyers the “APRL” held its first conference in-person since early 2020, whereby everyone attending in person has been asked to submit proof of vaccination. 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 no one is required to attend the conferences.

Therefore, the question to be posed is how do vaccine mandates affect lawyers’ mandatory appearances?

First, it should be noted that the World Health Organisation (WHO) states that “Vaccines are one of the most effective tools for protecting people against COVID-19. Consequently, with COVID-19 vaccination under way or on the horizon in many countries, some may be considering whether to make COVID-19 vaccination mandatory in order to increase vaccination rates and achieve public health goals and, if so, under what conditions, for whom and in what contexts. It is not uncommon for governments and institutions to mandate certain actions or types of behaviour in order to protect the wellbeing of individuals or communities. Such policies can be ethically justified, as they may be crucial to protect the health and wellbeing of the public. Nevertheless, because policies that mandate an action or behaviour interfere with individual liberty and autonomy, they should seek to balance communal well-being with individual liberties. While interfering with individual liberty does not in itself make a policy intervention unjustified, such policies raise a number of ethical considerations and concerns and should be justified by advancing another valuable social goal, like protecting public health.”

In addition, it should be noted that the World Health Organization (WHO) does not presently support the direction of mandates for COVID-19 vaccination, having argued that it is better to work on information campaigns and making vaccines accessible. Furthermore, WHO recently issued a position statement that national authorities and conveyance operators should not require COVID-19 vaccination as a condition of international travel.

Laws and the legal justifications for mandatory vaccination differ by jurisdiction. A legal obligation to be vaccinated is distinct from an ethical obligation insofar as the latter is not enforced by threats of restrictions in the case of non-compliance. The focus of this document is ethical considerations and caveats for mandatory COVID-19 vaccination policies and if lawyers have an obligation under the Rules of Professional Responsibility to get the vaccine if they are able?

Ethical considerations

Currently, there is limited access to COVID-19 vaccines worldwide, particularly in low-income and lower middle-income countries. WHO, has expressed concern that the inequitable distribution of COVID-19 vaccines could deepen already existing inequalities and even introduce further social schisms.

In the current context, introducing a requirement of vaccination as a condition for travel has the potential to hinder equitable global access to a limited vaccine supply and would be unlikely to maximize the benefits of vaccination for individual societies and overall global health. While individual, economic and social benefits could potentially be promoted through such a policy, these benefits also have to be balanced against the risk to public health based on current scientific knowledge, including critical unknowns about the risks mitigated by vaccination.

Another ethical consideration is equity in the general distribution of benefits and burdens. In the context of unequal vaccine distribution, individuals who do not have access to an authorized COVID-19 vaccine would be unfairly impeded in their freedom of movement if proof of vaccination status became a condition for entry to or exit from a country. National authorities should choose public health interventions that least infringe on individual freedom of movement.

Legal considerations

Countries who have agreed to the provisions of the International Health Regulations (the “IHR”), are expected to abide by its stipulations concerning the introduction of a requirement for proof of vaccination for outgoing or incoming international travellers. The COVID-19 IHR Emergency Committee regarding the COVID-19 pandemic advised that it is premature for countries to require proof of vaccination for international travellers. Subsequently, the WHO Director-General, in the context of the public health emergency of international concern related to COVID-19 pandemic, issued the following Temporary Recommendation for countries: “At the present time, countries should not introduce requirements of proof of vaccination or immunity for international travel as a condition of entry as there are still critical unknowns regarding the efficacy of vaccination in reducing transmission and limited availability of vaccines.”

Currently, yellow fever is the only disease mentioned in the IHR for which countries can require proof of vaccination for international travellers (Annex 7 of the IHR). In addition, in the context of the public health emergency of international concern of the international spread of poliovirus and following the advice of the Polio IHR Emergency Committee, WHO issues every three months Temporary Recommendations allowing certain affected countries to require proof of polio vaccination for international travellers.

Should the requirement of proof of COVID-19 vaccination for international travellers be introduced in future in accordance with IHR provisions, vaccines must be approved by WHO, and be of suitable quality and universally available, for the protection of all people from international spread of disease.

In Practice

Some employers and firms have already imposed vaccine mandates with some territorial regulations even requiring employers with 100 or more employees to mandate vaccination or weekly testing, even some courts are now starting to impose mandates, not just for their own employees but for anyone entering the building.

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 as this is a private business decision.

For example, a Judge in the Eastern District of Wisconsin issued a covid-19 vaccine order for his courtroom. Anyone entering the courtroom including but not limited to; parties, witnesses, lawyers, etc… 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. 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.

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 or using other virtual methods 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 matter, but it will not come as a surprise 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 as it stands, there is nothing in any of the Lawyers Rules of code of conduct to suggest not getting vaccinated by itself will constitute a violation, but the effects might be.