Law firms in most regions of New York state have been preparing for a return to the office over the last week, after getting the green light to enter the second phase of the state's reopening plan.

But in New York City—the largest legal market in the U.S.—hundreds of physical law firm offices must still remain closed, with their managers balancing logistical needs such as retrieving mail and physical documents with the governor's shutdown orders and employee safety concerns.

One Manhattan personal injury firm's moves toward a "soft reopening" underscores this delicate balance—and the high stakes for the industry as the coronavirus crisis evolves. It also highlights some disagreement within the bar about law offices, in general, being deemed nonessential services under the governor's COVID-19 shutdown plans.

A series of internal emails show how 10-attorney firm Burns & Harris prepared for some staff to reenter offices in recent weeks. In a May 12 email to firm personnel, for example, partner Alison Keenan said the firm was seeking volunteers—for a maximum of three people per day—to enter the office and to sort through mail, scan, email and upload documents. Keenan wrote that the firm was also "starting to plan our reopening" and asked for feedback.

"One of the ideas we have discussed is having a 'soft' reopening on June 1, this would be a maximum of 50% of the staff, and on a voluntary and rotating basis, until we are allowed to fully open," Keenan wrote. "Please let us know your thoughts."

In a May 28 email, Keenan wrote, "We have decided to allow staff that wish to begin working in the office to do so beginning June 1," Keenan said, adding it was "completely voluntary." For those who wished to return to the office, the firm would cover their cost of parking in the city, she said.

She also relayed information about the firm's new safety protocols, such as providing staff with a face shield to be worn in the office at all times and placing hand sanitizer stations throughout the office.

Despite the precautions, the emails unnerved some employees who were concerned about returning, according to a firm source who spoke only on condition of anonymity. Some staff are "terrified to go in" but feel they must or they won't be considered part of the team and become at risk of losing their job, the person said.

That source and another person linked to the firm said they believed its actions conflicted with the governor's reopening plan, which doesn't allow New York City law firms to resume in-person operations until the city moves into the next phase.

In interviews last week, Burns & Harris' leaders stressed the firm's office was not "reopening," and the firm would continue operating virtually.

Keenan, in a brief phone call, said the emails were private and declined to comment further. Name partner Seth Harris said the firm has "employees who must come in who do essential things that we can't do from home for clients," including disbursement of settlement funds to clients.

He said the firm was holding settlement funds on at least 25 cases. "I have an obligation to my clients. These are people who may have left their jobs or don't have one. And they need settlement funds to feed themselves," he said.

The firm has many employees who have stated that that they don't want to return to the office until phase two is in place, "and none of those people are going to be losing their jobs," Harris said. "Nobody will be punished in any way, shape or form for not volunteering."

Harris said it was "very difficult" to distribute all settlement funds electronically. He said there were a few other "emergency services" that required some people to be in the office, including examining physical evidence for a pending or new case. "Clients send us things in the mail and now it's sitting on piles of mail in the office," he said.

He added that he wouldn't like to see more than 10 people on any given day in the office. "We are doing everything we can to make sure emergency services are being provided in a safe way," he said in the interview.

Ultimately, about six people came into the firm's offices daily this week, Harris said Thursday, adding that he had also visited. "Certain lawyers must operate before phase two or they are potentially hurting their clients," he said. "You can't just lump every profession together in one basket, it doesn't make any sense."

Harris is not the only New York City attorney who has voiced concerns about law firms having to wait until phase two of Gov. Andrew Cuomo's plans.

"I think it shows a clear disregard for rule of law when you don't consider all lawyers essential," said New York criminal defense attorney Vinoo Varghese.

'Overriding Concern'

Under Cuomo's plans, law firm offices must remain closed before phase two in their region. But after some pushback from the bar, the state's Empire State Development provided some exceptions that may apply to a swath of the legal community, including even banking lawyers.

The exception says law firms are considered essential businesses if their legal services are needed to support the essential functions of clients such as health care providers, utilities and financial institutions or to support criminal defendants in court or parties in emergency family court, among other exceptions.

While law firms haven't been provided other official guidance about allowing employees and attorneys to reenter the offices, many firms have allowed personnel to enter to pick up mail and other physical documents.

David Schraver, of counsel at Nixon Peabody and part of the New York State Bar Association's working group to advise on law firm reopenings, said the firms he's familiar with have been "very strict" about preventing staff and lawyers working in the office before phase two. But his firm, like others, has had one staff person in the office to retrieve physical items when needed before phase two started. He also anticipates some people will go back in law firm offices to get them prepared for reopening in those regions where it's allowed.

Many firms and the state bar's reopening guidelines encourage people to continue to work remotely as much as possible, Schraver said. "I think it will be limited how people can come back to the office."

"You're going to have to balance the overriding concern to keep people safe with the needs to meet your professional obligations," and that balance will be different based on the types of practice, culture and clients, Schraver added.

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