The Ethics of Advocating Against COVID Vaccine Mandates

By Michael Diederich, Jr.

January 28, 2022

The Ethics of Advocating Against COVID Vaccine Mandates


By Michael Diederich, Jr.

A famous professional athlete,[1] unvaccinated against COVID-19, arrives at your law office seeking representation relating to his opposition to any vaccination. He has (hypothetically) been turned down for a tennis coaching job at a tennis academy in Queens, New York. He wishes to prove his point that he is entitled to work in his chosen field, without a mask and unvaccinated. Earlier the same day, a New York City public schoolteacher has come to the law office seeking legal review of her letter of resignation, as she is being forced to resign because of her fear of being vaccinated.

This article addresses some moral and legal ethics issues relating to potentially representing the sports star and the schoolteacher, as well as issues concerning the law office staff. This article specifically addresses ethical and moral questions relating to lawyers representing, and employing, people who oppose governmental mandates such as vaccination against COVID-19 (COVID[2]).

The COVID pandemic has created many legal, moral and ethical dilemmas, both for individuals and for society as a whole. Lawyers may ask themselves: Is it moral and professionally ethical to advocate for a client where the legal right sought – for example, the right not to be vaccinated – might very well result in the client’s severe physical illness or death? What if the potential result is severe physical illness or death for one or more of the client’s relatives, friends, workplace colleagues or anyone in physical proximity?

A Deadly Virus

There is no doubt that COVID kills. But it does not kill with 33% (one in three) lethality of the Middle East Respiratory Syndrome (MERS)[3] or the 30% lethality of the now-eradicated smallpox virus. The lethality of COVID is much lower, at least so far. COVID-19 (pre-omicron) has a lethality of around 0.3% for the general population (already killing about 1% of America’s over-65 population).[4] One million deaths in an American population of over 300 million is not an insignificant figure. Most Americans recognize this and, accordingly, Americans both individually and collectively have taken steps to protect against COVID-caused illness and death in the following ways:

  1. Individuals have taken protective measures for themselves and their families through vaccination, protective masks, social distancing, isolation and testing;
  2. Employers (private and governmental) have required of their employees some or all of the same, and
  3. Government at various levels (federal, state and local) have imposed various constraints on people’s liberty, e.g., temporary business closures, mandatory social distancing and protective mask-wearing, required vaccination to enter public spaces, and entry restrictions and quarantines.

From almost the start of the pandemic, there has been public debate as to the need for some or all of the above measures. This debate has changed over time as the virus mutated and as health experts learn more about the virus and its variants. For example, there is the possibility that omicron will become endemic but manageable, eventually allowing life to return to normal. In the abstract, almost everyone agrees that there must be a balancing between the government’s power to constrain individual liberty for the sake of public safety and the individual’s right to be free from unnecessary governmental compulsion. However, the balancing has become politically polarized, making individual, employer and governmental decision-making difficult.[5] Assessing the science, the statistics and one’s soul are relevant to assessing the morality and ethics of our behavior.


Is disregard of vaccination mandates and protective masks akin to jaywalking or drunk driving? Americans disagree in their perceptions about COVID’s dangerousness, particularly with the new omicron variant. Yet as to the original COVID-19 virus and its delta variant, it cannot be credibly disputed that adults who refuse to mitigate viral spread (e.g., by not wearing a sufficiently protective mask in public[6]) and who refuse to be vaccinated are acting in a manner that places the safety of others (and themselves) at risk.

Is it moral to place others at risk of death? Well, every time we drive over the speed limit in a car, we are placing others at increased risk. Speed limits are set to save lives. So when does it become immoral to place others at increased risk? It’s a judgment call. When does violating a governmental mandate designed to protect the general public become a moral violation? At what point does trivial disregard become morally repugnant dereliction? Speed limits, stop signs and seatbelt requirements may be viewed as annoyances by some, but all should agree that driving twice the speed limit on a city street while drunk is a moral dereliction (not to mention a felony).

This is not a philosophy paper, yet most should agree that when the cost of compliance to an individual is small, and the benefit to others (and, collectively, to society) is large, the moral thing to do is to comply. As to COVID, because the cost to individuals in wearing protective masks, social distancing and getting vaccinated is objectively small, and the benefit to others (and also one’s self) in avoiding serious illness and death is large, the moral thing to do at present is to get vaccinated and, especially if in a region where COVID transmission is raging, to wear an adequately protective mask when in public. The moral equation may change with the passage of time – for example, if omicron becomes endemic and no worse than the common cold for vaccinated individuals. The “precautionary principle” of environmental law may be the best guide: if a certain activity may have tremendously harmful consequences, it is prudent to control the activity rather than to wait for further scientific evidence.[7]

Moreover, scientific statistics and human perception of risk are two very different things. The risk that a virus will do harm is much less obvious than that of a reckless or drunk automobile driver. Yet this should not change the moral equation. During the past 12 months of the COVID pandemic, there have been many more people who have died of COVID-19 than have died from accidental deaths (automobile, fire, etc.).[8] When the reckless or drunk driver kills someone, it is a moral outrage and crime. Yet when a person dies of COVID-19 because he and those around him were unvaccinated, it is a tragedy without moral or criminal implication. We can readily see that the reckless or drunk driver proximately caused an accident victim’s death, whereas the proof of causation between an unvaccinated person’s interactions with others and someone’s death will be rare indeed.

If a person recklessly spreads COVID (for example, by coughing in a public setting without a mask if they know or reasonably suspect that they have COVID), are they any less morally culpable for serious illness or death than the drunk driver? People fail to see this moral equivalency and moral dereliction.

The reason is lack of awareness. There is not an obvious connection between drinking with a group of people at a bar while spreading a deadly virus (not even realizing you are sick) and seeing a connection to reckless driving. Awareness of risk is perhaps why the vast majority of people respects and complies with traffic rules and regulations, whereas a large percentage of Americans rejects COVID-protection measures. Many Americans rejected vaccination even as news reports showed hospital ICU beds filling up with unvaccinated delta variant victims. Society’s conduct has not changed much with the rapid spread of omicron. Many Americans still seem indifferent, even as hospital medical personnel became exhausted, ICU beds scarce and blood supplies in perilously short supply, all of this imperiling responsibly vaccinated people in need of non-COVID-related hospital care.[9]

Much of the law is based upon moral values, and COVID has created moral challenges. The balance of this article will discuss the some of the challenges COVID poses for professional ethics.[10]

COVID and Professional Ethics

Morality aside, whether and when a person can legitimately claim a lawful exemption from COVID mandates, and the lawyer’s role in advocating for such, is an important ethical discussion for the legal profession, as it affects our conduct toward our potential clients, retained clients, professional colleagues and office staff.

Potential Clients

There can be no doubt that some people have sincere, heartfelt fears about vaccination, and sometimes legitimate fear. As mentioned in the introduction, a high school teacher came to the author’s law office asking for the legal review of her letter of resignation based upon her refusal to be immunized. She is immunocompromised. Her physician advised her to get the COVID-19 vaccine, but her medical specialist said it was “up to her” (as, of course, it was). She was afraid of the vaccine. We gave her legal advice protecting her legal rights. But as “lay” advice, we urged her to get immunized (and urged her to ask her specialist what he would do if in her shoes). She seemed to be a very sincere yet very misguided person. Her risk of death due to her age and immune-compromised condition was greatly increased absent immunization.[11] We did our job as a law office. We gave sound legal advice. We discussed the possibility that she might have a potential legal claim as a union member. Our non-legal advice was gratuitous, perhaps,[12] and in any event fell on deaf ears.

A lawyer’s job is to represent clients who feel unlawfully aggrieved or who need (or feel they need) a defense to the actions of others. Even murderers are entitled to a defense, and so are people who feel they need a defense against governmental actors’ or employers’ perceived infringement upon their civil liberties.

Many people have contacted our law office in connection with COVID vaccine mandates affecting their employment. Most, if not all, have a sincere aversion to being vaccinated against COVID. In our office, one attorney’s (the author’s) personal view is that almost everyone should be vaccinated against COVID, whereas another of our attorneys views this as a matter of liberty and personal choice. Thus, the first ethical question is whether we can permissibly undertake the representation or whether an attorney’s possible hostility toward people who choose not to vaccinate precludes this.

A lawyer or law firm can represent an individual notwithstanding personal disagreement or, if there is written informed consent to do so,[13] “differing interests.”[14] For example, an attorney may have a disdain, generally, for people who decline to do what he or she believes to be the socially responsible thing. Most criminal defense attorneys disdain crime. ACLU attorneys do not embrace neo-Nazism.[15] Yet the criminal defense attorney’s job, and civil rights lawyer’s job, is to lawfully help the client – the person in need. Helping a person who is fearful of a vaccine, even if irrationally so, does not imply that the attorney personally condones the choice not to get vaccinated. Rather, it is to help the client who has such fear. The attorney’s help can include seeking a reasonable accommodation, a leave of absence or union support for the client’s job interests. As long as the lawyer and firm believe they can adequately and competently handle the case[16] they can, but with some COVID caveats. The lawyer must obtain written informed consent from the client[17] if the attorney has personal interest that may result in “a significant risk that the lawyer’s professional judgment . . .  will be adversely affected by the lawyer’s . . .  personal interests,”[18] or any conflicting representation.[19] Thus, if the lawyer finds a client’s COVID-related case too unsympathetic or personally offensive, a colleague should handle the case. The attorney should also be aware that any conflict of interest is imputed to the entire firm.[20]

The next ethical question, which should arise at or shortly after the initial consultation, is whether there is a bona fide legal claim to pursue.[21] It is unethical for the lawyer to file a frivolous lawsuit, [22] which filing might be separately sanctioned by the court under its rules of procedure.[23] The lawyer cannot accept a client if he or she reasonably should know that the client wishes to “bring a legal action . . .  or assert a position [or take steps] in a matter . . .  merely for the purpose of maliciously injuring any person. . . . ”[24] The lawyer has an obligation to “reasonably consult with the client” as to how the client’s “objectives are to be accomplished.”[25]

Some law firms may suggest to the client that merely threatening the employer might obtain a beneficial result, with a colorfully worded demand letter and a lot of puff, smoke and mirrors. The lawyer writing such a letter must, however, be cognizant of impermissible purposes and be aware that even conduct unrelated to litigation can result in professional discipline. For example, it is unethical for an attorney to intentionally lie, as Rule 4.1 states: “[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person, and likewise cannot misrepresent facts or the law to a tribunal (and must correct false statements).”[26]

If, as a result of the initial consultation, the law firm determines that there is no good faith legal claim, and that the only likely way of getting the client’s desired outcome is to put forth falsehoods, the firm should decline the representation. Especially in COVID-related matters, the lawyer must be sure to “consult with the client about any relevant limitation on the lawyer’s conduct,” as must be done if the lawyer learns that the client “expects assistance not permitted by [the Rules of Professional Responsibility] or other law.”[27]

Retained Clients

Let’s say your firm takes on a vaccine-hesitant client whose employment is in peril or who has been fired. The lawyer’s job is to fully and competently represent the interests of the client within the bounds of the law. A key concept is “lawfully.” The attorney can provide a tremendous service to a sincere client, especially one who is willing to listen.

If the unvaccinated client’s employment has not been terminated, the lawyer can seek to negotiate an accommodation with the employer; for example, allowing work at a socially distanced location in the office, allowing work from home, or allowing a leave of absence. Obtaining a “reprieve” for your vaccine-hesitant client could result in saving the client’s career. With the passage of time, the client might eventually conclude that the benefits of vaccination outweigh the client’s perceived risks.

The lawyer may see plausible legal claims worth pursuing, and as such seeks redress from the employer or from a governmental agency,[28] and if this fails, from a court. Hopefully, your client will prevail.

However, if it becomes clear during the course of litigation that a claim has no factual basis, it must be withdrawn as meritless (frivolous). If your entire case has evolved to a point where it has become clear that no bona fide claims can be established at trial, the lawyer must recommend to the client that the lawsuit be discontinued.[29] If the client refuses to authorize this, the attorney should withdraw from the case,[30] and if the court does not allow withdrawal, the lawyer is precluded from introducing false evidence at trial, such as what the lawyer reasonably expects will be perjured testimony.[31]

The above may be particularly relevant in COVID litigation, and not necessarily because of malice or mischief on the part of the client, but rather because some clients’ perception of the vaccine is so frightening, indeed, overwhelmingly so. The fear is so great that they may allege anything they think “may stick” – e.g., religious objection, medication intolerance or psychological impairment. Discovery may reveal that one or more of the assertions is not true or was not made in good faith. As to the law, the court might dismiss your client’s lawsuit on such basis.

There are bona fide and viable legal protections that an attorney can assert to protect a vaccine hesitant client, with some federal statutes mentioned next.


Under the Americans with Disabilities Act,[32] and parallel New York State and New York City law, an employer must engage in an interactive dialogue with a client who has a COVID-related impairment or perceived impairment to see whether a requested accommodation can be made.


If an illness, rather than a disability, is involved, an employee may have protection under the Family Medical Leave Act.[33] For example, a person or covered family member becoming ill with COVID or related illness may be entitled to up to 12 weeks medical leave under the FMLA.

Title VII – Religious Discrimination

Title VII of the Civil Rights Act of 1964 protects employees against discrimination based upon their religious beliefs. This is a fertile ground for both fair and frivolous claims. If a person holds a sincerely held religious belief preventing vaccination, that triggers the need for an interactive dialogue with the employer regarding possible reasonable accommodation.

NLRB and “Decisional and Effects Bargaining”

Under the National Labor Relations Act, as well as corresponding state law, employers have the legal duty to bargain in good faith as to conditions of work and mandatory subjects of bargaining.[34] Mandatory workplace masking and COVID vaccinations are certainly subjects requiring discussion.

Professional Colleagues

We live in a politically polarized nation, and many aspects of the COVID pandemic have become “hot button” issues. With this in mind, it is particularly important that all lawyers maintain our professionalism and respect norms of professional courtesy and civility. This certainly includes respecting the COVID policies of offices you visit. Lawyers also can play a role in changing people’s minds regarding vaccine hesitancy.

In a forthcoming paper entitled “Vaccine Hesitancy and Legal Ethics,”[35] the two authors describe their view of the role that legal ethics can play in advancing public health and safety, including helping to counter vaccine hesitancy. Essentially, their article reiterates the lawyer’s duty not to knowingly spread disinformation about vaccines and the virus. They also propose “alternative avenues for aligning legal ethics with public health,”[36] such as:

  • requiring vaccine passports for court appearances,
  • incorporating public health concerns into the Comments accompanying Rules of Professional Responsibility,
  • countering vaccine disinformation through continuing legal education, and
  • encouraging third-party advocacy.

Lawyers, as officers of the court, are a part of the third branch of government. We are a profession of rules and, when necessary, we should be advocates for better rules to help avoid societal chaos. Beyond the moral duties discussed at the beginning of this article, in this time of COVID we have a moral duty (and sometimes an ethical duty) to advance the public interest, including public health and safety.

Thus, absent good cause, lawyers have a moral duty not only to be vaccinated against COVID (and other deadly diseases), but also to educate ourselves about immunizations (that they are safe) and certainly to not intentionally spread falsehoods about vaccination. Vaccine hesitancy based upon disinformation is causing thousands of deaths.[37]  We have a moral duty to protect those around us – clients, staff and everyone else. Some lawyers have very close contact with COVID-vulnerable clients (e.g. the elderly, disabled, prisoners) and thus may have – like health care workers – heightened moral (and perhaps ethically aspirational) obligations of beneficence and non-maleficence.[38] Moreover, as discussed at length in a report by the New York City Bar Association’s Professional Ethics Committee, an unvaccinated lawyer may be inclined, out of personal fear, to avoid such clients by refusing to attend required court appearances, breaching professional obligations such as diligence and avoidance of conflicts of interest in the process.[39] Avoiding necessary steps to advance the client’s interest may breach the duty of competence.[40] Less egregiously, an attorney may perhaps avoid providing pro bono representation (an aspirational ethics violations[41]). Thus, non-vaccination could impair the lawyer’s diligence,[42] fitness[43] or ability to represent the client, requiring withdrawal.[44]

Particularly applicable to COVID misinformation and disinformation, under Rule 8.4, it is ethical misconduct for a lawyer to:

“. . . (b) engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice. . . . “[45]

Whether alleging facts regarding COVID or presidential election results, there may be professional consequences for lying. For his false statements, including to the courts and the “public at large,” former New York City Mayor Rudy Giuliani’s New York law license has been suspended in connection with his dishonesty about President Trump’s 2020 election loss.[46]

A powerful argument has been made by W. Bradley Wendel of Cornell Law School that lawyers (regardless of their political leanings) must remain true to the “fundamental normative commitments of legal ethics,” which includes “defending legal rules, procedures, and institutions against gross manipulation in the service of some political end,” which means “respect for law and facts.”[47] Attorneys (such as the author) may take cases to advance “justice” and “the public interest,” yet justice and the public interest may be in the eye of the beholder.

Wendel argues that supporting truth in support of the law is the most important value in legal ethics, as a normative matter. He gives as an example former Attorney General William Barr who bluntly characterized President Trump’s theories of election fraud as “bullshit,”[48] and quotes another attorney who wrote: “Precisely because good lawyers couldn’t fathom Trump’s false claims of fraud, Trump was left with what Barr aptly called a ‘clown show’ of a legal effort. . . . ”[49] In other words, as to the 2020 election, lawyers demanding actual evidence helped save our democracy, at least for the time being.

For Wendel, lawyers’ upholding the law based upon truth has a “stabilizing effect” that is one of the “central theoretical pillars of legal ethics.”[50] Whether pandemics or politics, facts matter and should especially matter to lawyers. Even in a “post-truth era,” courts are “among the rare fora where statements must still be supported by evidence-based, verifiable facts.”[51]

Office Staff

Last, but certainly not least, is the law firm’s office staff. As an employer, the moral guidelines, law and ethical rules discussed above must not be ignored. If an employee has a medical or religious objection to vaccination, engage in the interactive process required by law and see if a reasonable accommodation is possible, as this will likely be best for all concerned. Keep in mind that it is professional misconduct for a lawyer to unlawfully discriminate, including “determining conditions of employment on the basis of . . .  creed . . .  [or] disability. . . . ”[52]


Whether the superstar athlete or a schoolteacher seeks legal representation to avoid governmental or employer COVID mandates, the lawyer must be cognizant of the applicable ethics rules. There is much an attorney can do to protect the vaccine hesitant. But what the attorney must not do is ignore rules requiring good faith advocacy based upon truthful facts. “Know when to fold them,” if a mandate-avoidant client has not been honest with you, the lawyer. A lawyer can legitimately fight to assert an honest client’s religious- or disability-connected right not to be vaccinated. At the same time, there is nothing wrong in mentioning to a vaccine-hesitant client or potential client that vaccines are safe, effective and protective of others.

Michael Diederich, Jr. is a solo practitioner in Rockland County who represents individuals in civil rights and employment law matters. He is a retired U.S. Army “JAG” lawyer and served on active duty tours in Germany, Iraq and Afghanistan. He is a member of NYSBA’s Committee on Civil Rights.

[1] The athlete could be Novak Djokovic. See Damien Cave, When Tennis Became a Stage for Right and Wrong During a Pandemic, N.Y. Times,  Jan. 14, 2022,

[2] “COVID,” as used in this article, means the SARS-CoV-2 virus and its recent variants, including delta and omicron. “COVID-19” will refer to the original COVID disease and the delta variant.

[3] Gina Kolata and Benjamin Mueller, Halting Progress and Happy Accidents: How mRNA Vaccines Were Made, N.Y. Times, Jan. 15, 2022,

[4] Julie Bosman, Amy Harmon and Albert Sun, As U.S. Nears 800,000 Virus Deaths, 1 of Every 100 Older Americans Has Perished, N.Y. Times, Dec. 13, 2021,

[5] Mary Scouten, The Intersection of Partisan Affiliation, Political Polarization, and COVID-19 Pandemic Response, NYSBA Health Law Journal, Vol. 26, No. 3 (2021).

[6] With the new omicron variant, best is an N-95 or KN-95 mask.

[7] Principles of Environmental Law, Encyclopedia Britannica (2022),

[8] See Center for Disease Control & Prevention (CDC) website, (40,698 motor vehicle deaths, and 200,995 total accidental deaths in 2020).

[9] See, Jennifer Rubin, Americans Should Be Learning To ‘Live’ With COVID-19. The Unvaccinated Are Making That Impossible, Wash. Post, Dec. 30, 2021,

[10] N.Y.S. Rules of Professional Conduct, 22 N.Y.C.R.R. Part 1200.

[11] Dorry Segev and William Werbel, Omicron Isn’t Milder for Everyone, Like Our Patients, N.Y. Times, Jan. 13, 2022,

[12] Cf. N.Y.S. Rules of Professional Conduct, Rule 2.1 (“… . .  a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may . . .  [refer] to other considerations such as moral . . . factors that may be relevant to the client’s situation.”).

[13] See N.Y.S. Appellate Division’s Rules of Professional Responsibility, 22 N.Y.C.R.R. Part 1200, Rules 1.7(a)(1) & (b)(4) (requirement for written consent if representing “differing interests”).

[14] See N.Y.S. Appellate Division’s Rules of Professional Responsibility, 22 N.Y.C.R.R. Part 1200, Rules 1.0(j), defining “differing interests”).

[15] E.g., ACLU History: Taking a Stand for Free Speech in Skokie, (neo-Nazi representation).

[16] See N.Y.S. Appellate Division’s Rules of Professional Responsibility, 22 N.Y.C.R.R. Part 1200, Rules 1.1 (competence) and Rule 1.2 (diligence)

[17] Id. Rule 1.7(b)(4).

[18] Id. Rule 1.7(a)(2).

[19] Id. Rule 1.7(a)(1).

[20] Id. Rule 1.11(a).

[21] Id. Rule 1.16(a)(2).

[22] Id. and Rule 3.1 (non-meritorious claims and contentions).

[23] E.g., FRCP Rule 11.

[24] Id. Rule 1.16(a)(1).

[25] Id. Rule 1.4(a)(2).

[26] Id. Rule 3.1.

[27] Id., Rule 1.4(a)(5).

[28] E.g., the N.Y.S. Division of Human Rights, N.Y.C. Commission on Civil Rights, the U.S. EEOC, the U.S. Department of Labor or the NLRB.

[29] Id., Rule 1.15(b).

[30] Id.

[31] Id., Rule 3.3(a)(3).

[32] 42 U.S.C. ch. 126, § 12101 et seq., incorporating the ADA Amendments Act of 2008.

[33] See, 29 U.S.C. § 2601 et seq.

[34] NLRA §§ 8 (d) & 8 (a)(5); see also .

[35] Noelle Wyman & Sam Heavenrich, Vaccine Hesitancy and Legal Ethics, Georgetown Journal of Legal Ethics (2021, forthcoming),

[36] Id.

[37] Id., at p. 3; see also N.Y.S. Rules of Prof. Conduct 4.1 (lawyer shall not knowingly make a false statement).

[38] To benefit others, and avoid harming others, respectively. Id., pp. 6–8.

[39] N.Y.C. Bar Comm’n on Pro. Ethics, Formal Op. 2020-5, at 4 (2020),

[40] Id., citing NYSBA Ethics Op. 1053 (2015).

[41] N.Y.S. Rules of Prof. Conduct 6.1, & 6.5.

[42] Id., Rule 1.3.

[43] Id., Rule 8.4(h).

[44] Id., Rule 1.16(b)(2).

[45] Id., Rule 4.1 (“In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”).

[46] See also Renee Knake Jefferson, Lawyer Lies and Political Speech, Yale Law Journal Forum, Vol. 131 (2021-2022),

[47] W. Bradley Wendel, Pluralism, Polarization, and the Common Good: The Possibility of Modus Vivendi Legal Ethics, Yale L. Journal Forum (Oct. 24 2021),

[48] Id.

[49] Id.

[50] Id.

[51] Lawyer Lies and Political Speech, supra note 47, at Point III.

[52] N.Y.S. Rules of Prof. Conduct 8.4(g).

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