'Learning as We Go,' Law Firms Struggling to Keep Up With COVID-19 Information
With no federal guidance, states have scrambled to institute their own shelter-in-place orders, leaving law firms to turn to online research teams and spreadsheets to keep track of information.
April 02, 2020 at 05:00 AM
6 minute read
The original version of this story was published on The American Lawyer
At 5 p.m. March 19, Pennsylvania Gov. Tom Wolf released a short proclamation ordering that all nonessential businesses close in response to the rapid transmission of the novel coronavirus.
When Fox Rothschild chairman Mark Silow saw the order, he immediately began scrambling. Not because the mandate came as a surprise—the firm has offices all over the country and similar orders had been filed in states such as California—but because the terse letter made no carve-out for law firms as essential businesses. What did this mean for the courts? What about the small skeleton crews that had been popping into the office to collect mail and maintain the servers that were working hard to keep the entirely remote firm connected?
"We have five offices in Pennsylvania and weren't sure about the scope. It was brief," Silow said. "In other places it tended to be more detailed."
At the same time, Theodore Simon, a veteran criminal defense attorney in Philadelphia and past president of National Association of Criminal Defense Lawyers, began immediately drafting a letter from his home, imploring the governor to ensure that criminal defendants would be afforded representation despite the fact that the order did not classify attorneys as essential.
"I remember sitting there at 5 p.m. on Thursday and I immediately went to work," Simon said. "Whether others were doing it or not, I had to do it. It was necessary, critical."
Similar scenarios have played out across the country as courts and local governments scramble to respond appropriately to the rapidly changing conditions surrounding the spread of COVID-19. Without much federal guidance to go on, states have come up with their own, creating a patchwork of varying orders.
Not only do those orders vary by location, but they change daily, so keeping up with them is a never-ending task for law firm managers.
The federal government has not yet issued a nationwide shelter-in-place order. Although several states including California, New York and, most recently, Florida, have issued statewide closures orders, many have not.
And while the American Bar Association has loosened guidance on online legal education and regularly publishes COVID-related webinars and news, the organization has not issued much concrete guidance to the scrambling state bars, firms and law schools—the latter of which has been grappling with a heated debate over grading systems.
In the weeks since, the pace has become no less frantic: State supreme courts have been handing down guidance and interpretations almost every day, and many states have allowed their courts, and even individual judges, to have relatively broad discretion on rules and procedures.
State courts, for example, have been largely closed in Pennsylvania. But federal courts in the state have fought to stay open, closing only when courthouse workers report having contracted the virus.
It wasn't until midday March 20 that the Administrative Office of Pennsylvania Courts handed down guidance allowing exemptions for attorneys, staff and clients performing "essential" functions. Even then, it took a few days of correspondence with the governor's office to ensure that Fox Rothschild was allowed to maintain basic operations in its Pennsylvania locations, according to Silow.
"I've been practicing for over 40 years and this is the most challenging thing I've ever faced. We're all learning as we go," he said.
In the week since, the Pennsylvania Supreme Court has been releasing near-daily guidance on everything from what can be classified as an essential function to rules about fast tracking appeals.
Fox Rothschild has been staying on top of the constant changes through delegation: The firm has a dedicated group that has been putting together a spreadsheet of local rules and operational changes as well as changes relating to tax law, a strong practice for the firm. The sheet is updated constantly.
Philadelphia-based Ballard Spahr has set up a similar system, wherein the firm's research team tracks changes to deadlines and procedures to disseminate firmwide as a daily report. But everything is moving so fast that interpretations sometimes have to be made on the fly.
"We've had lawyers in judges' courtrooms when a report comes out and they interpret it right there," managing partner Mark Stewart said.
In other states such as Florida, which closed all nonessential businesses Monday, the state's bar association has taken the lead on disseminating information on CLE extensions, legal service exemptions and court procedures. The Florida Bar website has posted all eight of the Florida Supreme Court rulings and all of the circuit and federal court operational changes, which vary county by county, district by district and even judge by judge.
Many Florida courts, for example, are leaving it to the judge's discretion as to whether deadlines get postponed.
"We've all been getting very quickly up to speed," Florida Bar president John Stewart said. "We've had a steep learning curve with no playbook."
The Florida Bar has even gone a step further and handed over member emails organized by county and circuit to the state's clerks of court so that each court could reach out directly to members based on their jurisdiction. Stewart said the move was crucial as to not overwhelm attorneys with information that isn't pertinent to their practices.
"Our goal has been to provide information to our members and, when appropriate, to the public, without overwhelming them," Stewart said.
For transactional attorneys, the churn of information is often taking place on the legislative level.
Like other firms, San Francisco-based Farella Braun + Martel has set up a research team to keep the firm abreast of the changing landscape. Each day firm attorneys are fielding questions around business interruption insurance, the feasibility of construction projects and the availability of loans and grants. But because both the state and federal governments have been furiously passing stimulus legislation, advice has to be updated constantly.
"Things have changed so rapidly over the last couple weeks advice you gave one day would change the next day because new legislation has passed," said Farella managing partner Brian Donnelly.
And with everything that's going on, lawyers have been also dealing with the challenge of transitioning their entire practice remotely in the span of two weeks. Miami-based K&L Gates partner Elisa D'Amico has been keeping updated on Twitter and Instagram, which she has found to be the fastest way to get new information. But she, like thousands of attorneys across the country, has found it difficult to stay completely up to date while balancing client needs and homeschooling.
"I have many jobs now, as we all do," D'Amico said. "I'm doing the best that I can and do things knowing that tomorrow it will be different."
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