PROFESSIONALISM CORNER
CATHY L . PURVIS LIVELY
Consider Professional Courtesy When Responding to a Request to Wear a Mask or Physical Distance
On November 4 , 2021 , Chief Judge Kelly Amended Administrative Order 12.515.5 ,
“ In Re : COVID-19 Health and Safety Protocols and Operational Measures .” The Administrative Order ( AO ) follows the Florida Supreme Court Administrative Order AOSC21-17 , addressing mask mandates , physical distancing , and remote proceedings .
AO 12.515.5 provides , in pertinent part , “ Effective 12:01 a . m . November 15 , 2021 , all persons entering any of the courthouses in Palm Beach County will not be required to wear a face-mask or facial covering . Persons who wish to wear a face-mask or facial covering will be permitted to do so . Masks shall be provided upon request .” ( emphasis added ). The AO further provides that while physical distancing is no longer required , it is encouraged and includes a provision permitting participants in an in-court proceeding to “ request to be physically distanced .”. In other words , although we expect that the Court will continue to revise its policies and procedures , the AO currently recognizes and respects that some individuals will request to continue to adhere to COVID-19 mitigation measures .
It is certainly encouraging news that these rollbacks of the restrictions or mitigation measures may signify the light at the end of the tunnel . However , this light should not distract us from the needs of others who request to wear masks or maintain physical distancing .
How should we respond if requested to don a mask or maintain distancing during meetings , depositions , or mediations ?
While the AO specifically addresses activities within the Courthouse , the provisions can provide guidance for outof-court proceedings , as well , such as depositions or mediations . For example , the AO recognizes the right to wear a mask and even includes the provision that masks shall be provided upon request . The AO also recognizes the right to request physical distancing .
Similarly , even though the Court has lifted the mandatory mandates and restrictions , as a matter of professional courtesy , the requests of others that those in their presence wear masks should be considered . Those with whom we interact , be it members of our staff , attorneys , clients , opposing parties , witnesses , court reporters , mediators , or others involved , may have apprehensions about proceeding in person without masking and physical distancing . The individual - or his or her family member - may be immunocompromised , unvaccinated , be at risk for other reasons . The person making the request is entitled to privacy , and the request should not require them to disclose personal information about their health or the health of family members , especially when it does not affect the issues in the case .
Moreover , a request to adhere to masking and distancing may be somewhat different when we move from the Courthouse ’ s more open and spacious environment to a more confined setting such as a conference room . In a conference room environment , for example , not only may the individual want to wear a mask , but he or she may also request that everyone in the room wear a mask and maintain social distancing . The question here is whether we should voluntarily agree to wear a mask and maintain distancing .
Although certainly not dispositive , we find guidance in the Florida Bar Professionalism Expectations . Section six includes the Professional Expectation that “ A lawyer should accede to all reasonable requests for scheduling , rescheduling , cancelations , extensions , and postponements that do not prejudice the client ’ s opportunity for full , fair , and prompt adjudication .” i Perhaps this should be applied to a reasonable request to wear a mask or maintain social distancing . As a matter of professional courtesy and respect for others , we can accommodate reasonable requests when feasible and when it does not prejudice our client ’ s opportunity for full , fair , and prompt adjudication . Of course , there may also be reasons why wearing a mask is a hardship . Those , too , should be considered and appropriate accommodations should be reached .
Obviously , there are diverse ideological views about masking , be it the utilitarian view that everyone should wear a mask to protect the greater good of society , or in contrast the libertarian view that it is our body , and we have the right to choose whether to wear a mask . There are also underlying health-related reasons why someone may request implementing these protective measures , and a reasonable request to adhere to protective measures should not lead to an argument or debate over ideological views .
We must be mindful that a request for masking or distancing is not limited to the context of the pandemic . The request may be made by an immunocompromised at risk of being exposed to any virus or illness , not just COVID-19 . For example , the individual may have a medical condition or be undergoing chemotherapy , radiation , or taking medication that affects their immune system .
Many are feeling COVID-19 fatigue and eager to exit the tunnel . That said , when responding to a request for masking or distancing , we must not allow frustration from this fatigue to eclipse professionalism . The person making the request has lived the pandemic experience too and is experiencing similar frustration . They may also be dealing with other challenging circumstances that place them at risk . Responding to the requests with professionalism and exercising professional courtesy is a step closer to the reaching end of the tunnel .
i The Florida Bar , Professionalism Expectations .
PBCBA BAR BULLETIN 19